Tiernan v. Hammond

Robinson, J.,

delivered the opinion of the Court.

Upon a motion to strike out a judgment after the term is past, the Courts in this State exercise a general equitable jurisdiction, and will therefore consider all the facts and circumstances of the case, and require that the party making the application shall appear to have acted in good faith and with ordinary diligence. Relief will net be granted where a party has been guilty of laches or unreasonable delay. 18 Md., 130.

In this case the original judgment was recovered against Philip T. A. Hammond, and it is a conceded fact, that at the time of signing the paper purporting to be a supersedeas judgment, the appellee was an infant under the age of twenty-one years. That he had the right to avoid the paper thus signed by him cannot be denied, and the only question to be decided, is whether he has lost that right by laches or unreasonable delay.

The judgment of supersedeas was signed by him on the 23rd of November, 1862, and filed in the clerk's office on the 29th of December following. In October, 1863, a /?. fa. was issued and returned nulla bona. Afterwards Mary Hammond who also signed the supersedeas judgment died, and in February, 1873, her death was suggested, and a writ of scire facias issued tojevive the judgment. This writ was returned non est, and then renewed, and returned ‘ ‘ made knoion. ’ ’

At the July Term, ISIS, the first term after the writ was served, the appellee appeared, and put in four pleas. To the first and second the appellant joined issue, and to the third and fourth he demurred. The Court sustained the demurrer, and thereupon the appellee moved to strike out the supersedeas judgment, on the ground of fraud, surprise, irregularity, infancy and other reasons not necessary to be stated here. It thus appears by record, that from the tune the scire facias was served upon the appellee, he utterly denied his liability on account of the judgment of supersedeas, and immediately took steps to avoid the same. But it was urged in argument that, these steps were not taken until 1813, more than ten years after signing the paper purporting to be a judgment of supersedeas. But the reason why steps were not taken before is freely explained by the affidavit of the appellee, in which he says that in signing the paper he had no idea that it was a judgment, on the contrary, it was represented to him as a mere matter of form, and would impose upon him no obligation or responsibility, that he never appeared before the justice of the peace, and was not aware of the fact that such a judgment existed until the writ of scire facials was served upon him. That it was competent for the appellee to testify in regard to these facts, for the purpose of explaining why he had not taken steps before to avoid the judgment, is too clear we think for argument, and admitting them to be true, it follows that he was not guilty of laches or unreasonable delay in seeking to avoid the judgment. If he did not know of the existence of the judgment until the writ of scire facias was served, he could not of course take any steps to avoid the same. Moreover, during all this time, extending through a period of ten years, no steps were taken by the appellant to enforce the payment of the judgment. The case thus presented differs widely from Kemp & Buckey vs. Cook & Ridgely, 18 Md., 130. There judgment was confessed by Ridgely, one of the parties to the original cause of action, and the Court saj'-, “ In this case the appellee according to his own showing reached his majority in 1845, and although aware of the existence of the judgment and the mode in which it was rendered, made no objection to it and took no step to avoid it until 1851. This delay in our opinion amounted to laches which would deprive the appellee of the relief sought.”

(Decided 5th March, 1875.)

For these reasons the order of the Court below striking out the judgment will be affirmed.

Order affirmed.