MacKenzie v. Renshaw ex rel. Renshaw

55 Md. 291, 1881 Md. LEXIS 38

Opinion

Miller, J.,

delivered the opinion of the Court.

This appeal is from the overruling of a motion to strike out a judgment rendered in an ejectment suit. The action was brought in the Circuit Court for Baltimore County, on the 5th of March, 1879, by the appellee, Emma Renshaw, by her husband and next friend, William Rensbaw, against the appellants, George W. MacKenzie, trustee, Howell Downing and Elizabeth Downing, his wife, for certain lots of land described in the declaration, situated in Baltimore County, unoccupied, unimproved and vacant.

The suit was, of course, instituted since the passage of the Act of 1872, ch. 346, which has made important changes, in the proceedings and practice in actions of ejectment in this State. To the declaration was attached a notice, signed by the plaintiff’s attorney, addressed to the defendants, giving them notice of the suit, and requiring them to appear in Court in person or by attorney on the second Monday of March, 1879, to make defence to the action according to law, “ otherwise judgment will be recovered against you for the premises described in the declaration, and you will be turned out of possession.” All the defendants resided in the City of Baltimore. Three copies of the declaration and of this notice, one for each of the defendants, were issued by the clerk under seal, and placed in the hands of the sheriff of Baltimore County, who made return thereto: “ Not found, no tenant in possession, copies set up on the premises.” On the 15th of September, 1879, at the following September term of the Court, none of the defendants having appeared, the Court rendered this judgment in the case: “Judgment for the plaintiff by default for property described in narr., one cent damages and costs.” Promptly thereafter, on the 19th of September, the defendants appeared by counsel and moved to strike out this judgment, alleging they had received no notice whatever of the suit until they saw it published in the papers a day or two before, that this judgment had been recovered against them, and assigning among others, as a reason why it should be struck out, that it was irregularly obtained and is contrary to law. This motion was overruled, and hence this appeal.

The construction and effect of the Act of 1872, are very important questions, but all that we propose to decide now, is whether the judgment rendered in this case was authorized by law and duly entered. The Act in question, after providing that the action of ejectment shall be commenced by filing a declaration, in which the real claimant shall be named as plaintiff, and the tenant in possession, or the party claiming adversely shall be defendant, declares that “ a copy of the declaration with a written notice of the suit addressed to the defendant, shall be served on each of the defendants, or the land, if no person be in actual possession; that to this declaration, the defendant or any other person with leave of the Court, may appear and plead not guilty, which plea shall be held a confession of the possession and ejectment, and shall only put in issue the title to the premises, and right of possession, .and the amount of damages claimed by the plaintiff/' (which in this case was $6000,) “but any defendant may refuse to appear, or file a disclaimer of title to the land or any part thereof, in which case the plaintiff shall recover judgment against the defendant so disclaiming or refusing to defend for the land or so much thereof as shall not be defended, but the costs shall be subject to the discretion of the Court, and the trial shall then proceed against the .party making defence, under the rules and practice of the Court as the same existed prior to the year 1870, except so far as the same may be changed by this Act.” And it is then provided that the plaintiff “ shall also recover as damages in this action, the mesne profits and damages sustained by him, and caused by the ejectment and detention of the premises, up to the time of the determination of the case.”

It is manifest that the Court below in rendering the judgment complained of in the present case, assumed that the power to render it was given by this statute, and that they acted under it in ordering the judgment to be entered. But in our opinion the law confers no such power in the case of a simple failure of all the defendants to appear. By the plain reading of the Act, the judgment therein mentioned, in favor of the plaintiff for the land, or so much thereof as shall not be defended, can be given only in cases where one or more of several defendants, after process has been duly served, refuse to appear or file a disclaimer of title, and where another or others have appeared and made defence, so that as against them the trial can proceed. The law does not declare that such a judgment may be rendered in favor of the plaintiff upon the mere failure of the sole or all of the defendants to appear, and we cannot place any such construction upon it. Nor can we treat this as an authorized judgment by default. The Act makes no provision for such a judgment, and this omission may well have been by design on the part of the Legislature. Under the old -practice where the tenant in possession failed to appear in place of the casual ejector, according to the exigency of the notice, a judgment by default was entered against the casual ejector, and thereupon a writ of habere facias could be issued under which the tenant in possession could be put out, and the lessor of the plaintiff put in possession of the premises. But such a judgment, and indeed any judgment in ejectment under the old practice, was conclusive upon nobody, and when the Legislature by this Act abolished the fictions, and required the real parties in interest to become plaintiffs and defendants in such actions, they may have foreborne, in view of the possibly binding and conclusive effect of such judgment as between the parties, to provide for the case of a judgment by default for want of an appearance, against the sole and only defendants, which would have the effect of a definite and conclusive adjudication against their title. In the English Common Law Procedure Act, (15 & 16 Vic., ch. 16,) which also abolished the common law fictions in this action, it is expressly provided that the writ shall be served in the same manner as an ejectment has heretofore been served, or in such manner as the Court or a Judge sball order, and in case of vacant possession by posting a copy thereof upon the door of the dwelling-house, or other conspicuous part of the property, and “in case no appearance shall be entered within the time appointed, or if an appearance be entered, hut the defence be limited to a part only, the plaintiffs shall be at liberty to sign a judgment that the person whose title is asserted in the writ, shall recover possession of the land, or of the part thereof to which the defence does not apply.” -There is no provision in our Act as to any such judgment where no appearance by any of the defendants is entered, and it is not the province of the Courts' to supply the omission, especially not in a case like the present where the land being vacant and unim proved, • the process was served simply, as the sheriff’s return states, hy copies being set up on the premises, without showing how, or where on the land they were so set up, and where the defendants had no other notice in fact of the suit. "We are, therefore, clearly of opinion this judgment was entered without authority, and the order overruling the motion to strike it out must be reversed. In what we have thus said, we are, of course, to he understood as referring to the ordinary action of ejectment, and not to such an action between landlord and tenant under the statute of 4 Geo. 2, eft. 28, as modified by the second section of the Act of 1812, ch. 346.

In the course of the argument at bar several other questions in regard to the construction and effect of this Act were discussed, upon which it is not necessary now to express any definite opinion. The law however seems to us defective in some important particulars. Not only is there no provision made for a judgment by default as above stated, similar to that provided by the English Common Law Procedure Act, but there are not the same, nor indeed any proper safeguards in reference to service of process in cases where the lands are wholly vacant, unenclosed and unimproved. There is a large quantity of such land in this State, and a law which provides simply that a copy of the declaration and notice shall be served “ on the land if no person be in actual possession thereof,” and makes such service effective and the judgment in the action conclusive between the parties named in the declaration, seems to us. to open wide the door to the infliction of grievous and irreparable wrongs upon owners, who may happen to reside in a different county from that in which the land is situated, or be non-residents of the State. Under the ancient mode of proceeding by ejectment in England peculiar and special formalities were required, and it was necessary that an open and notorious act should he'done on the property itself, in cases where the possession was vacant, where the premises were wholly .deserted by the tenant and his place of residence unknown, and where the case was not provided for by the statute of 4 Geo. 2, ch. 28. The mode of proeedure in such cases is pointed out in 2 Tidd’s Practice, 1200. We do not suggest that any such peculiar formalities should he provided hy legislation in this State, hut we think something more should he required to give notice to owners or claimants in such cases than the mere service of the declaration “on the land."

(Decided 21st January, 1881.)

In the present case the judgment overruling the motion to strike out will he reversed, and the cause remanded in order that the defendants who have now appealed may he allowed to defend the action.

Judgment reversed, and cause remanded.