Mottu v. Fahey

Fowler, J., delivered the opinion of the Court. This is an action of ejectment. The plaintiff, who is the appellee here, claims under a deed which sets forth a merely nominal consideration from one Michael Kelly, dated subsequent to the deed, under which the defendant, Theodore Mottu, claims. This is the second trial of this action brought by the plaintiff to recover the property in question. In the first trial the plaintiff claimed, as he does now, under his deed from Kelly, and the defendant rested his — 391 — -case upon certain magistrate’s judgments against said Kelly and the proceedings thereon, which had been recorded and returned to the cleric of the Superior Court under the Code of 1860, Article 83, section 9. The defendant’s title rested on the validity of the proceedings so recorded, and on the appeal taken from the judgment in the first trial it was held that the record of the magistrate’s judgments and the proceedings thereon were fatally defective, because there was nothing therein to show that Kelly had ever been summoned, and tliaf, therefore, the judgments against him, the sale of the property in question to the defendant, Mottu, in this case, and the deed to him by the constable, were all void. Fahey vs. Mottu, 61 Md., 250. The cause having been remanded by this Court for a new trial, the defendant, Mottu, thereupon applied to the Superior Court for leave to withdraw the ■original papers in the magistate’s cases and to re-file them with additional returns to remedy the defect pointed ■out by this Court in 61 Md., 250, supra, namely, a failure •of the record, as returned, to show that the defendant Kelly had been summoned. On the 28th June, 1888, leave was granted as prayed, and subsequently, on the 10th of September following, the •original papers, with the necessary additional returns, were filed in the Superior Court, from which it appeared that Kelly had been duly summoned. On the 21th July last the case was again tried in the Court of Common Pleas, and the question is presented whether the record of the proceedings in the magistrate’s cases as amended and re-filed are, as the appellee contends, utterly null and void, or whether such record is legally admissible ■evidence in support of Mottu’s title. The objection made in the former case to the admissibility of the record in evidence, and to the validity of the judgments was, that it did not appear from the proceedings that a summons had been issued. And while — 392 — it is not denied, and, in the face of the explicit testimony of the constable, cannot be denied, that the defendant was in fact summoned, as now shown by the amended or corrected record of proceedings before the-magistrate, it is contended that the Superior Court has no power to authorize any amendment of the record of' such proceedings. Neither reason nor authority was suggested for this position. It would seem but reasonable that the Court which takes jurisdiction, to which the sale is reported, and by which it was required, under the provisions of the Code then in force, to be ratified, should have the same control over the record of proceedings returned by the magistrate as over its own records. When returned to the Superior Court by the justice, his-proceedings became a part of the records of that Court, and the amendment authorized did nothing but allow the addition of a necessary part of the record, which had been improvidently omitted. If, as contended by theappellee, the Superior Court has no power to order the amendment, because when it passed the order of ratification of sale it was functus officii as to that case, and if,, as was also suggested, the justice was equally without power after making his return to the Court, no correction or amendment whatever can be made after the-periods above indicated. But such a rule seems to bean arbitrary one, would certainly result in great inconvenience, and practically prevent the correction of errors in a class of cases in which they are most frequently found. Nor do we think there is any force in the objection that the papers were re-filed by the hands of the constable, rather than by the justice in person. It is sufficient-to say in answer to this objection that while the Code-does provide that the constable shall make return to the-justice, “who shall forthwith deliver all of the said return * * * to the clerk of the Superior Court,” yet this. — 393 — provision clearly refers to the first filing of the proceedings, and has, we think, no reference whatever to the re-filing, which was done by virtue of the order of the Superior Court, the validity of which is not to be determined by provisions of the Code relating alone to magistrates and constables. It seems to us, however, without prolonging this opinion, that the one sufficient answer to most of the difficulties suggested by the appellee, including the failure of the justice to rule the cases against Kelly for trial in accordance with Article 51, section 19, of the Code of 1860, is that when the defendant has been summoned, as the amended record shows he was, the justice then had jurisdiction, and his failure subsequently to rule the case for trial did not oust it. It does, however, appear from the record that there was a substantial compliance with the statute in this respect, for the record shows that Kelly was summoned to appear on the 8th of November, 1883, at 9 a. m. in the first case, and that on the 15th day of the same month a trial ex parte was had. The same is true as to the other case. It, therefore, appears that the trials were postponed until the seventh day after the defendant was summoned, and this we think a sufficient and substantial compliance with the Code of 1860, Article 51, section 19, that, “if the summons shall be returned summoned, and the defendant shall fail to appear on the return day thereof, then the justice shall fix a day of trial not less than six nor more than fourteen days from the return day, and proceed to try the case ex parte,” for the statute does not require that the fixing of a day after defendant is summoned and fails to appear, shall be in writing, and be made a part of the record of proceedings. It is enough that it does appear that in fact the cases were properly fixed or ruled for trial. It was also objected that the levies and advertisements of sale by the constable are fatally de — 394 — fective because of insufficient and conflicting descriptions of the property levied on and sold, but we think the proceedings are free from any such objection. (Decided 12th January, 1894.) The first prayer of the appellee should have been refused. It instructs the jury that on the pleadings and evidence in this case, their verdict must be for the plaintiff for the property described. It has been held that instructions like this are defective, Kent vs. Holliday, 17 Md., 387; Chipman vs. Stansbury, 16 Md., 154; Fells Point &c., Savings Inst. of Balto. vs. Weedon, &c., 18 Md., 320; and Dorsey’s Ex’rs vs. Harris, &c., 22 Md., 85, because they are expressed in such general terms that it is impossible to ascertain from them or the record exactly what point was intended to be decided by the lower Court. Poe’s Practice, sec. 297. The second prayer of the appellee excluded from the jury the amended proceedings in the magistrate’s cases returned to and recorded in the Superior Coui’t, which, when amended, as we have said, should have been admitted. It follows that the judgment appealed from should be reversed. Judgment reversed, and judgment for appellant.