Wilmer v. Trumbo

Urner, J., delivered the opinion of the Court. By the bill of complaint in this case the following facts are alleged: On April 30, 1900; the appellant, Edwin M. Wilmer, obtained a judgment for $43.98 against John J. Spell-man before a justice of the peace of Baltimore City. The judgment debtor subsequently died. In 1912 a writ of scire facias was issued at the appellant’s instance for the purpose of renewing the judgment.

The writ was served upon the appellee, Margaret Trumbo, as the personal representative of the deceased debtor. She appeared before the justice of the peace who issued the writ and testified that she was not Spell-man’s personal representative and had no knowledge of his affairs; that he had a daughter by the name of Margaret Trumbo, but that she was then dead- This was the only testimony taken before the justice. The appellee was not indebted in any capacity to the appellant, and in view of the uncontradieted proof that she was not the personal representative of the judgment debtor she believed that so far as the was concerned the case was dismissed. A judgment, however, was, without her knowledge, entered in the ease by the justice against Margaret Trumbo, personal representative of John J. Spellman, for $90.60, and it was placed on record in' the office of the Clerk of the Superior Court of Baltimore City.

In January, 1913, the appellee filed the bill now under review setting forth the facts just stated, and alleging further ⁴⁴⁷ that the appellant had caused a wait of fieri facias to be issued on the judgment, and that in the execution of the writ the Sheriff of Baltimore City had levied upon and was proposing to sell certain lots of ground of which the appellee was the owner. It was charged that the judgment was obtained by fraud and that to subject the appellee’s property to its payment would be unconscionable. The bill prayed that the execution be restrained by injunction. The appellant demurred to the bill and this appeal is from the order of the Court below overruling the demurrer with leave to answer.

Upon the allegations of the bill, which are admitted to be true for the purposes of the present inquiry, the appellee is clearly entitled to equitable relief. The judgment sought to be enforced is against Margaret Trumbo, personal representative of John J. Spellman, and it is conceded by the demurrer that the appellee does not answer to that description. The service of the writ of scire facias upon her was plainly due to a mistake as to her identity. There was ample ground for her belief, under the circumstances stated in the bill, that the error having been proven without dispute no action could be taken in the case by which she would be in any way affected.

It would be subjecting her to an