Scheidt v. Schermerhorn

Stockbridge, J., delivered the opinion of the Court. Four bills of exception appear in the record in this ease, though but one of them is at all vital to the decision of the case. The first and third bills were taken to the rulings of the lower Court upon evidence, which rulings were correct. The case was heard on a motion to strike out a. judgment, made after the term at which, the judgment had been entered. The judgment was founded on an attachment by original process-, issued upon the ground that Charles B. and Kitty W. Jester had disposed of, or was about to dispose of their property for the purpose of defrauding their creditors. In order that the motion should prevail it was incumbent upon the party making it to show that the judgment had been rendered as the result of fraud, deceit, surprise or mistake, and the burden of establishing this rested with the p-arty making the application. In both of the exceptions mentioned the plain purpo-se was to elicit evidence tending to- show that the person who- had procured the attachment to issue, had a reasonable ground for making the affidavit upon which the process by Way of attach-men was founded. It, therefore, went to the bona fides of the original plaintiff, and since it involved a question of fraud, o-pened the door for a wider scope to the examination of the witnesses than would otherwise have been the case. In the second exception Charles B. Jester, one of the original defendants, was under examination, and had testified to the existence of four mortgages, aggregating in the neighborhood of $5,000,—upon property, the value of which was *470 testified by him as being $20,000. He was then asked, why he had four mortgages on the property, and “Don’t you think it would be better financing to have just one mortgage?” This question was in no way material to the issue involved; at best it invited merely the expression of the witness’s opinion upon a question of financing, and should properly have been excluded, but it is impossible to see, from an examination of the record, any injury which resulted to the defendant from the overruling of this objection, and since error alone without injury does not constitute ground for reversal, the judgment as rendered will not be disturbed, unless it shall appear that there was other prejudicial error. The sole question, therefore, at all important to the determination of this case, grows out of the ruling of the Court and its action in refusing to strike out the judgment. This is raised by the fourth bill of exceptions. There is no controversy as to the fact that the application so to strike out was not made until the term following that at which the judgment was rendered and “It is well settled that when a motion is made to set aside a judgment after the term at which it was rendered, the proof of fraud, deceit, surprise or mistake must be clear and satisfactory, and it must appear that the party making the application has acted in good faith, and with ordinary diligence,” and that he has a meritorious defense. II Poe's Pleading & Practice (4th Ed.), sec. 392; Abell v. Simon, 49 Md. 318; Smith v. Black, 51 Md. 247; Geesey v. Stouch, 94 Md. 75; Girard F. & M. Ins. Co. v. Bankard, 107 Md. 538; Jones v. State, 118 Md. 69. This is the rule of law applicable to applications such as the present. The question of whether there was proof of fraud, deceit, surprise or mistake was a question of fact to be found as such, and where the trial Court, after hearing the evidence upon the motion, found adversely to the original defendants on the question of fact, such finding is not to be lightly disturbed. *471 In the short note cases both of the defendants were returned non sunt, there is thus no issue hero involved of the erroneous return upon the part of the sheriff. In the case of Coulbourn v. Flemming, 78 Md. 210, where there had been an erroneous return on the part of the sheriff, and it was established as a fact that the defendant named had no knowledge of the suit, until after the judgment had been rendered, the judgment was ordered to be stricken out. The ease is important by reason of the fact that the correctness or incorrectness of the return is not the sole basis for the entry of the judgment; that the vital element is a knowledge of the proceeding upon the part of the defendant, and the case of Pattison v. Hughes, 80 Md. 559, is to the same general effect. This leads to the inquiry, whether or not the original defendant had knowledge of the suit, and with regard to' this,, so far as Charles 13. Jester is: concerned, there is considerable conflict in the testimony. The suit was instituted on the 3rd day of July, and the attachment was laid returnable to the August Rule Day. Jester himself makes several different and conflicting statements, as to when he first had knowledge of the proceeding; thus on his direct examination he fixes the time during the month in which the suit was brought ; at a later stage he places the time in the January following. His aetionsi just following the levy of the attachment, as testified to by Mr. Buber, are entirely in accord with the idea of his knowledge being as of the earlier date, when he paid three visits within a short time to the office of the plaintiff. The date of the knowledge was, therefore, a question of fact to be found by the trial Court, and as such is not reviewable by this Court, and the motion can not prevail so as to absolve him. With regard to the defendant, Kitty W. Jester, it is specially urged that she had no knowledge of the suit.until in January, and that as far as she was concerned the motion was seasonably made. The facts asi affecting her are concisely these; there was a farm at or near Timonium in Baltimore County, which stood in the joint names of herself and *472 husband, constituting them tenants by the entireties; this was sold prior to the institution of the suit for the sum of $10,000'; there was also a farm near Tolchester, on which Mrs. Jester conducted a summer hoarding house. The personal property and stock on both of these farms appears to have belonged, without any very clear lines of demarcation, to both. Mr. and Mrs. Jester. Produce from the Timonium farm was shipped to Tolchester for the use of the boarding house; the materials; purchased from the plaintiff, S'chermerhom, were mainly feed for the' chickens or other stock, upon one or the other' of these twio places, and most of the purchases were made upon orders given by Mi*. Jester. The account was carried on the hooks of the plaintiff in the name simply of Mr. Jester, though the materials were apparently used indiscriminately for the benefit of both him and his wife. It would, therefore, seem that in ordering, this feed Mr. Jester was acting for himself, or as the agent for his wife, and used for the joint benefit of his and his wife’s stock. He must accordingly he looked upon in the light of an agent for his wife, and she as hound by the act of her agent. But this also was a question of fact, to' be considered and passed upon as such, and upon a careful examination of the record there certainly was no such error committed, in the refusal to strike out the judgment, as to indicate any arbitrary or capricious action upon the part of the Court. The judgment appealed from will accordingly he affirmed. Judgment affirmed, with costs.