Taylor v. Sindall

34 Md. 38, 1871 Md. LEXIS 30

• Court: Court of Appeals of Maryland
• Decided: February 10, 1871
• Status: Published

Opinion

Bartol, C. J.,

delivered the opinion of the Court.

This is an appeal from a judgment of the Court of Common Pleas, rendered on the 28th day of June, 1870, striking out a judgment which had been rendered in the same Court in favor of the appellants against the appellee, on the 15th day of March, 1865. The motion to strike out the judgment was filed on the 31st day of May, 1870, and the cause assigned in support of the motion was alleged “ irregularities on the face of the proceedings.”

The power to set aside judgments on motion for fraud, surprise or irregularity, is a common law power incident to Courts of record; and may be exercised after the term has passed in which the judgment was rendered. Kemp, et al. vs. Cook, et al., 18 Md., 138.

The power was recognized by the Act of 1787, ch. 9, section 6, which has been reenacted in the Code, Article 75, section 38, which was construed by this Court in Butterfield vs. Levy, decided at October Term, 1868, and noted in, 30 Md., among the unreported cases.

(Decided 10th February, 1871.)

The rules and principles governing the Court in deciding upon applications of this kind, made after the term has passed, are fully stated in the case of Kemp, et al. vs. Cook, et al. It is there said that relief will not be granted where a party has knowingly acquiesced in the judgment complained of, or has been guilty of laches and unreasonable delay in seeking his remedy.”

We think the present case falls within that rule, and that the long acquiescence of the appellee in the judgment rendered against him in March, 1865, and his laches and delay in waiting more than five years before making his application for relief, which is without any explanation or excuse, would of itself be a sufficient cause for overruling the motion. But there is another and fatal objection to granting the motion. The judgment complained of was entered upon an award made by Win. Sheppard Bryan, Esq., filed in Court. It appears by the record that objections were made to the award, which were overruled and the judgment thereon was entered, blow it is evident that all the grounds of objection to the judgment raised by the motion to strike it out, were presented by the objections to the award, and were then finally adjudged and determined. It is therefore res adjudicata, and cannot again be brought in question in the same case.

For these reasons, we think, the Court below was in error in sustaining the motion; and the judgment of the 28th day of June, 1870, striking out the antecedent judgment of the 15th day of March,. 1865, will be reversed.

Judgment reversed.