Shaw v. Adams , 263 Md. 294 ( 1971 )

263 Md. 294 (1971) 283 A.2d 390

SHAW
v.
ADAMS

[No. 47, September Term, 1971.]

Court of Appeals of Maryland.

Decided November 9, 1971.

The cause was argued before HAMMOND, C.J., and BARNES, FINAN, SINGLEY and DIGGES, JJ.

Robert C. Verderaime, with whom were Verderaime & DuBois on the brief, for appellant.

Abraham L. Adler for appellee.

PER CURIAM:

This is an appeal from an order of the Court of Common Pleas of Baltimore City vacating a judgment by default which had been entered in a tort action for want of plea. The chronology of the unusual chain of events is of significance. In May of 1968, Shaw sued the Mayor and City Council of Baltimore and one Oden, whom he mistakenly believed to be the owner of the property on which the injury was sustained. In February, 1970, Shaw filed an amended declaration, this time joining Adams, the owner of the property, as a defendant with the City. At the same time, Shaw elected a jury trial and served interrogatories on Adams.

When Adams neither responded to the declaration nor answered the interrogatories, Shaw, on 1 April 1970, moved for a judgment by default for want of plea, and, on the same day, judgment by default was entered. Also on the same day, Adams filed a general issue plea and answers to the interrogatories. It seems to be conceded that it was impossible to determine with absolute certainty which of the papers was filed first, even though the judgment by default was entered on the docket before the plea was entered.

In October of 1970, Adams moved to vacate the judgment. In March, 1971, the court granted the motion and this appeal followed.

Maryland Rule 625 a provides:

"For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity."

The court below, in striking the judgment by default, regarded the filing of the general issue plea and an answer to Shaw's motion ne recipiatur as having the effect of a motion to vacate the judgment, and concluded that the time within which the court could exercise its revisory power was thereby extended beyond the 30 day period specified by Rule 625 a. As we see it, the court reached the right result, but for the wrong reason.

Usually the law takes no cognizance of parts of a day, Reserves Ins. Co. v. Duckett, 240 Md. 591, 597, 214 A.2d 754 (1965) and in circumstances such as those presented here, absent convincing proof that one paper was filed before the other, it must be assumed that the lower court entered a judgment by default at the same moment when a general issue plea was filed. This essentially repugnant act was precisely the type of irregularity contemplated by Rule 625 a, which we defined in Berwyn Fuel & Feed Co. v. Kolb, 249 Md. 475, 479, 240 A.2d 239 (1968) as "the doing or not doing of that, in the conduct of a suit at law, which, conformable with the practice of the court, ought or ought not to be done." Compare Mutual Benefit Society of Baltimore, Inc. v. Haywood, 257 Md. 538, 263 A.2d 868 (1970) with Penn Central Co. v. Buffalo Spring & Equipment Co., 260 Md. 576, 273 A.2d 97 (1971).

As a result of the irregularity, the court's revisory power continued beyond the date when the judgment was enrolled. While it is true, as Shaw says, that Adams' motion to vacate did not allege that there was an irregularity, there was a specific allegation of the circumstances which constitued the irregularity.

Once the irregularity is established, the party who moves to set aside an enrolled judgment must also show that he is acting in good faith, with ordinary diligence, and that he has a meritorious defense, Tasea Investment Corp. v. Dale, 222 Md. 474, 478-79, 160 A.2d 920 (1960), so as to satisfy the court in the exercise of a sound discretion that the judgment should be set aside, New Freedom Corp. v. Brown, 260 Md. 383, 272 A.2d 401 (1971); Pinkston v. Swift, 231 Md. 346, 190 A.2d 533 (1963).

From the facts before it, although we are not to be understood as passing on their sufficiency, the lower court could have concluded that these criteria were met.

Order affirmed, costs to be paid by appellant.