Herbert v. Rowles

30 Md. 271, 1869 Md. LEXIS 29

• Court: Court of Appeals of Maryland
• Decided: March 10, 1869
• Status: Published

Opinion

RobiNSON, J.,

delivered the opinion of the Court.

As a general rule, it is true that a decree once enrolled cannot be opened, except by a bill of review, or by an original bill for fraud. To this rule, however, there are well founded exceptions, arising in cases not heard upon the merits, and in which it is alleged that the decree was entered by mistake or surprise, or under such circumstances as shall satisfy the Court in the exercise of a sound discretion, that the enrolment ought to be discharged and the decree set aside. These exceptions are supported not only by the soundest reason, but by the highest authority. The decree in such cases being by default, and not upon the merits, the cause of the default can never be the subject of inqury until the decree has been pronounced, and generally not until after the term has passed. Without the exercise, therefore, of this power in the Court to vacate the enrolment, a party against whom a decree had been entered and enrolled by mistake or surprise, and without any lashes on his part, would be without redress, however meritorious his defence may have been. A bill of review would be of no avail, because his claim to relief is not based upon error apparent in the decree, nor on account of newly discovered evidence; and unable to charge fraud in obtaining the decree, he could not file an original bill to vacate it upon that •ground. Accordingly it is laid down by the most eminent elementary writers, and fully sustained by adjudged cases, that where a case has not been heard upon the merits, the Courts will, upon good cause being shown, “exercise a discretionary power of vacating an em'olment and giving the party an opportunity of having his case discussed.” 2 Dan’l Ch. Prac., 1230; 2 Madd. Ch., 466.

In Kemp vs. Squire, 1 Ves. Sr., 205, where the plaintiff, who had continued an infant from the beginning of the suit until within six weeks of the decree, ñled a petition to have the enrolment set aside, because of the great neglect of his solicitor; Loud Hardwicke at first doubted whether it was in the power of the Court to open the enrolment, and desired that the precedents might be searched.

Two were found, the one of Robson vs. Cranwell, 1 Dick., 61, where a bill was brought by a person of full age who having left money with his solicitor to employ counsel, “ went beyond sea.” The solicitor having failed to employ counsel, the bill was dismissed. Upon application of the party it was held to be a dismission by default, and the enrolment was opened and the order set aside.

Also in Benson vs. Vernon, 3 Bro. C. P., 626, where there was a decree pro confesso, and the original bill dismissed, upon application to reverse the order dismissing the bill, and vacate the enrolment, it was decided, upon appeal to the House of Lords, that inasmuch “ as the merits of the case had not been entered into,” the enrolment should be set aside. Upon the authority of these cases, Lord Hardwicke said it was a discretionary power in the Court, to be exercised or not, according to the circumstances of the case.

In Hargrave vs. Hargrave, 9 E. L. & E., 14, the enrolment was discharged and the decree opened by petition, upon the allegation of surprise; nor is the case of Charman vs. Charman, 16 Vesey, Jr., 115, in conflict with these decisions, Lord EldoN having refused in that case to open the enrolment, because it had been heard upon the merits.

The cases in this country are in accord with the English , authorities upon this subject. In Millspaugh vs. McBride, 7 Paige, 509, the Chancellor held, that it was within the power of the Court to “ open a regular decree by default, even after enrolment, for the purpose of giving the defendant an opportunity to make his defence, where such defence is meritorious, and he has not been heard in relation thereto, either by mistake or accident, or by the negligence of his solicitor,” and the eases of Carter vs. Torrance, 11 Geo., 654; Erwin vs. Vint, 6 Munf., 267, are to the same effect.

The case of Oliver vs. Palmer & Hamilton, 11 G. & J., 137, is not, therefore, as was supposed in the argument, without authority to sustain it; nor is it in conflict with Birch vs. Scott, 1 G. & J., 393. After deciding in that case, the party was not entitled to relief either by bill of review, or by an original bill for fraud, the Court say, “the only remaining question tó be considered is whether it is consistent with the salutary and wholesome exercise of that sound discretion, which it is admitted the Court possesses upon subjects of this nature, to open or discharge the enrolment and vacate the decree, for the purpose of enabling the defendant to make his defence. Upon full and mature deliberation, we are’of opinion that it is not.” The power, however, of the Court to do so, in a case properly invoking the exercise of that discretion, is distinctly admitted. The apparent conflict in regard to this question, arises from the failure to distinguish between cases in which the decree has been pronounced upon the merits, and where it has been entered by default, or where the merits have not been considered.

In the application of these principles to the case now before us, we do not think the facts set forth in the petition and amended petition, in connexion with other facts disclosed by the record', sufficient to warrant the Court in the exercise of a sound discretion, to vacate the enrolment, and set aside the decree. True, the proceedings at first were of an ex parte character, but before the decree the appellant appeared by his .solicitor, and could have made his defence. In fact the case was submitted upon what he deemed sufficient proof to disclose the merits of the defence, and if the Court decreed adversely, his remedy was by an appeal; or if the decree was by. mistake, his claim to relief before enrolment was" undoubted. It was not a decree by default for which this Court can relieve upon petition after enrolment. The fact of being an alien enemy, and thereby disqualified from appearing in person or by attorney, cannot avail in this case. The privilege of appearing by attorney was accorded to and availed of by appellant, and justice and good faith demand that he shall not now be permitted to repudiate his own act or that of his attorney. For these reasons we think the petition and amended petition were properly dismissed.

This brings us to the appeal from the original decree, and the first question to be decided is whether it was taken in time. By the provisions of the Code the appeal must be within nine months, unless it is alleged on oath, that the decree or order was obtained by fraud or mistake. The nine months in this case had elapsed, but the appellant in his affidavit alleges that it -was obtained by mistake, and the petition and amended petition are referred to for the purpose of showing the nature of the mistake, and the time when it was discovered. By order of the Court, however, passed on the 13th day of June, 1866, the decree was vacated and annulled, and as a matter of course the right of appeal could not be exercised so long as the decree remains suspended. There was no decree from which an appeal would lie, and upon the authority of Bennett, et al. vs. Bennett, et al., 5 Gill, 465, the time during which the decree was suspended must be deducted. If so the appeal was in time.

How then stands the decree upon the proof and proceedings ? The bill was filed in 1863, and alleges the purchase of a tract of land by Rowles of Herbert — the price per acre— the conveyance — the mortgage to secure the unpaid purchase money, and the payments thereon, and the admission of a balance due Herbert.

It then charges that Rowles had discovered a deficiency of nineteen acres — that Herbert was a non-resident — that the complainant was anxious to pay the balance due on the purchase, after an allowance on account of the deficiency, and prays that an account may be taken, &c.

No appearance having been entered by Herbert, a decree, pro-confesso, was passed, and a commission issued to take testimony. On the 5th of July, 1865, the cause was submitted to the Court, and it was decreed that Herbert should pay to Eowles eight hundred and eighty-six dollars and forty-eight cents, with interest from that date. Now upon what proof is it proposed to sustain this decree, waiving all objections to the mode and manner in which it was taken ?

As to the contract of sale, we have the parol evidence of Brown and Talbot, that the land was sold by the acre, the price per acre, and the number of acres it was supposed to contain. In regard to the alleged deficiency, Dawson testifies that he was employed as surveyor to the commissioners appointed to divide the real estate of the late Camilla Herbert; that he knows the land allotted to the appellant, and that it calls for the north side of the Patapsco falls, bounding thereon ; that he understood Herbert sold by that boundary, — that Eowles had discovered a claim to “part of said falls f by the owners of “ East Lothian,” by virtue of an elder survey, and that to gratify the call of this older survey, the tract sold to Herbert must suffer a loss of eighteen acres. This is the proof! The deed with its covenants and description of land is not produced, the owners of “East Lothian” are silent as to their claim, no survey of either tract is made, no evidence of a suit or of any steps taken by the. parties claiming under the elder survey, to disturb the possession or evict the purchaser from the bed of Patapsco falls, the alleged land in dispute. Now such proof as this is not sufficient to establish the claim for abatement.

But it is insisted that admitting this evidence standing alone to be insufficient to sustain the decree, the following paper, signed by Snowden, solicitor for the appellant, dispensed with the necessity of further testimony:

“Rowles vs. Snowden.

In the Circuit Court for Howard Co., in Equity.

“It is admitted that the amount of indebtedness in this cause is eight hundred and eighty-six dollars and forty-eight cents, said amount including interest to the 5th of June, 1865.”

Now whilst it is contended on the one hand, that this paper means an acknowledgement of indebtedness from Herbert to Rowles, it is with equal confidence asserted on the other that it plainly imports just the reverse — an indebtedness to Herbert. If we look to the paper as our only guide to. its proper interpretation, we think it must be admitted, that it is by no means clear and unambiguous; and if viewed in connexion with the bill and proof, we see nothing to strengthen the construction placed upon it by the appellee. In speaking of the proof, we have reference of course to such as was taken before the decree, and not to the affidavits of Snowden and Donaldson, subsequently filed. Looking to the case as it stood before hearing, we see no reason why Snowden may not have understood and so intended the paper to mean an indebtedness to Herbert. The bill of complaint no where alleged an over payment of the purchase money, but on the contrary, in the prayer asks leave to pay the balance due after deducting therefrom the allowance claimed for deficiency in number of acres. We speak of course of the bill upon its face, and without reference to any calculation in regard to the amount of purchase money, payments, and allowance for deficiency. Moreover, by no calculation which we have been able to make, nor by any which was furnished in the argument, allowing Rowles the full amount claimed by him for deficiency, can the decree be sustained, whereas by giving to the paper signed by Snow-den, the construction contended for by the appellant, we find the indebtedness thereon admitted to be within a few dollars of the sum claimed to be due Herbert. How can we, therefore, say that the paper means and that Snowden thereby intended to admit an indebtedness to Rowles ?

(Decided 10th March, 1869.)

Being of opinion that the proof is altogether insufficient to sustain the decree, it must be reversed and the cause remanded for further proceedings.

Decree reversed and cause remanded.