Snowden v. Preston ( 1890 )

Robinson, J.,

delivered the opinion of the Court.

The docket entries show that the judgment in this case was entered 22nd July, 1878, and we all agree that the order of the Court directing the entry of the judgment to he changed, and the judgment to be entered as of January 9th, 1877, was an erroneous order, and must he reversed.

The facts as they appear on the face of the records of the Court below are these: On the 9th of December, 1876, suit was brought by the appellant against the appellee; and on the 9th of January, 1877, a judgment by default for want of a plea was entered against the defendant.

On the 22nd of July, 1878, the following agreement for confession of judgment, with the order of the Judge directing the judgment to he entered, was filed with the clerk of the Court:

“Samuel Snowden vs. John F. Preston

In the Court of Common Pleas, January 9th, ISU.

“Mr. Rasin, Clerk: — Enter a judgment hy confession in favor of the plaintiff in this case for the sum of one thousand and sixty-six dollars ($1,066) with interest and costs.

W: W. Busey,

Atty. for Pltjf.

Jno. F. Preston,

Defendant. ’ ’

“Which said confession or agreement having heen submitted to the Court here for its determination of the premises, passed the following order to wit:

“Let judgment he entered in accordance with the above agreement.

Henry F. Carey. ”

The docket entries show that the clerk on the 22nd of July, lS^, entered the judgment against the defendant in pursuance of the agreement and order of the Court, and on the same day a writ of attachment was issued on the judgment.

On the 10th of September, 1883, a credit of $350.30 as of 26th of February, 1880, was entered on the judgment hy order of the plaintiff’s attorney, and on the same day, a writ of fieri facias was issued which was afterwards returned “nulla bona.”

On the 15th of June, 1890, an attachment was issued, and on the 25th day of the same month, a motion was made by the defendant to .quash the writ of attachment, for the reason, among others, that it had not heen issued within twelve years as required hy the Statute of Limitations.

It will be observed, however, as the judgment then stood upon the records of the Court, twelve 'years had npt elapsed from the day the judgment was entered, because it was according to the docket entry, entered on the 22nd of July, 1878, and the writ of attachment was issued on the 15th June, 1890. So on the 30th of June, 1890, the defendant filed a motion in writing, praying the Court to pass an order directing the clerk to correct the entry of judgment by confession as to its date, and make the record conform to the date of the agreement to confess judgment, and the order of the Court thereon. Upon this motion the Court below passed an order directing the entry of judgment made 22nd of July, 1878, to be corrected, and the judgment entered as of January 9th, 1877.

The judgment, as thus corrected by the order of the Court, instead of being a judgment entered July 22nd, 1878, was a judgment of 9th January, 1877.

These are the facts, and the only facts upon which the order of the Court was passed, and, such being the case, they do not show, it seems to us, any error in the entry of the original judgment, which needed to be, or could be, corrected. If it be conceded that the agreement to confess the judgment, and the order of the Judge directing it to be entered, were both signed on the 9th of January, 1877, (and this is by no means clear,) these papers were not filed with the clerk of the Court till the 22nd of July, 1878, more than eighteen months after they were signed. The agreement and order thereon directing judgment to be entered were not matters of record till they were filed with the clerk, and until they were so filed the clerk had no power to enter judgment. And these papers having been filed on the 22nd of July, 1878, it was the duty of the clerk to enter the judgment as of that date. It matters not when the agreement and the order of the Judge were signed; the judgment itself could not be entered till they were filed iviih the cleric. An agreement to confess judgment may be signed, and not delivered to the clerk, as in this case, till months after-wards, and, under such circumstances, he would have no power to enter the judgment as of the date of the agreement. It must be entered as of the date when the papers are filed with him.

There was no error, then, it seems to us, in the entry of this judgment, and the Court ought not to have directed it to be changed from the 22nd July, 1878, to 9th January, 1877.

It may not be amiss to add, that Courts cannot be too cautious in interfering with judgments once entered, and especially after the lapse of the term. They are not only the highest evidences of debt, but are liens upon the real estate of the debtor. And we have repeatedly said, that in striking put a judgment after the expiration of the term in which it was entered, the Court acts in the exercise of its quasi equitable powers, and that this power will never be exercised except to promote the ends of justice. E urther than this, it must appear that the party making the application has acted in good faith and with ordinary diligence, for if there has been acquiescence on his part, or if he has been guilty of laches or unreasonable delay the Court will not intefere. Kemp & Buckey vs. Cook & Ridgely, 18 Md., 130; Smith vs. Black, 51 Md., 251.

Here the judgment had stood for nearly twelve years, and upon it execution after execution had been issued, and now the Court is asked to change the date of the entry of the judgment, the effect of which will be to bring the judgment within the operation of the Statute of Limitations, and thereby to deprive the plaintiff of the fruits of his execution. In other words, the Court is asked to change the date of the original entry of the judgment, not that it worked any injury at the time it was made to the defendant, but in order to enable him to plead limitations. This the Court ought not to have done.

(Decided 12th December, 1890.)

Order reversed, and cause remanded.