
    SPALDING v. CRAWFORD.
    Service of Citation on Appeal,Waiver of;Vacation of Judgment; Appealable Orders.
    1. Where a citation necessary to be served in order to perfect an appeal is properly issued, but is not served within the prescribed time owing to an oversight or mistake of the officer charged with its service, the right of appeal will not be defeated, especially where the appellee, in addition to his motion to dismiss the appeal for non-service of the citation, resists the appeal on other grounds.
    2. An order refusing to vacate a judgment and grant a new trial is appealable, under the act of Maryland of 1787, Ch. 9, Sec. 6, where the application is based upon the alleged deceit of the party obtaining the judgment and the surprise of his adversary or his attorney.
    3. Where the grounds upon which a motion to vacate a judgment are not sworn to by the mover, as required by Rule S8 of the Supreme Court of this District, such motion is properly refused, and his affidavit subsequently filed, which merely sets up a defense to the action and fails to show the circumstances under which the judgment was obtained, is not a compliance with that rule.
    4. A party who seeks to have a judgment vacated for alleged fraud, deceit or surprise must furnish clear and indubitable proof in order to entitle him to relief.
    No. 290.
    Submitted March 19, 1894.
    Decided June 4, 1894.
    Hearing on an appeal by the defendant from an order of the Supreme Court of the District of Columbia, holding a law. term, overruling a motion to set aside a judgment as having been obtained by deceit, fraud and surprise, and for a new trial.
    
      Affirmed.
    
    Statement of the Case.
    This was an action by Samuel J. Crawford against Harvey Spalding, on a promissory note, dated February 15, 1892, alleged to have been given by the defendant to the plaintiff and to have remained unpaid at the commencement of the suit. An affidavit of the plaintiff attached to his declaration stated that the note was given in consideration of valuable services as attorney rendered by him for the defendant. The defendant filed a plea of the general issue, and with it his affidavit, which stated that the note sued upon was given to the plaintiff by the defendant without the defendant’s having received any consideration therefor, and that the plaintiff had never rendered any services, either as attorney or otherwise, to the defendant. Issue was joined and the cause calendared for hearing. ■ On November 20, 1893, a verdict and judgment was rendered for the plaintiff, the defendant not being present in person or by counsel. The following motion to set aside the judgment was filed November 21, 1893:
    “ Now comes the defendant in the above-entitled cause, by his attorney, and moves this honorable court to set aside the judgment rendered on the 20th day of November, 1893, and as ground for said motion states that the said judgment was obtained in direct violation of an understanding with the counsel for the plaintiff; that on the 17th day of November the plaintiff filed a motion to set a day specially for hearing the said cause on the ground that the plaintiff wás a nonresident of the District of Columbia, and served a copy of such motion on the attorney for the defendant and notified the counsel for the defendant that the said motion would be called up on Saturday, the 18th instant; that the counsel for the defendant stated to the counsel for the plaintiff that he would not oppose the said motion, and would not attend the hearing thereof, and would be satisfied with any date which the court might assign, and received a positive assurance from the counsel for the plaintiff that he would be notified by counsel for the plaintiff of the action taken by the court and of the day set for the trial; that the counsel for the defendant had every reason to believe that the said motion had been called up and a day set specially for the trial of the cause, and, relying upon the assurance of the counsel for the plaintiff that we would be notified of the day set, did not attend the sitting of the court on Monday, the 20th instant, and that advantage was unjustly taken of his absence to obtain a judgment by default.
    Edwin W. SpaldiNG, Attorney for Defendant.
    
    
      On November 23, 1893, the following affidavit in support of the motion to set aside the judgment was filed:
    “ Edwin W. Spalding, being duly sworn, deposes and says, that he is the attorney for the defendant in the above entitled cause; that on Friday, the 17th instant, he was served by T. Percy Myers, one of the attorneys of the plaintiff, with a copy of a motion to have the said cause set for trial on a day special; that the affiant was informed by the said Myers at the time of the said service that the plaintiff was a non-resident and would not be in the city until after the first of December next; that the said plaintiff was wanted by his attorneys as a witness in the cause, and that as the cause would be reached ior trial the first of the following week it would be necessary to have the motion heard and the day set on the next day, Saturday, the 18th instant Affiant states that he informed the said Myers that the defendant was ready for trial at any time, but that he would not oppose a motion to fix a day special if the day was fixed before Christmas, and that the said Myers stated that he would have the day fixed some time between the first of December next and the 25th, in the discretion of the court; that the affiant consented to this arrangement and stated to the said Myers that as both parties were agreed to the motion the affiant would not attend its hearing on the next day, and requested the said Myers, in consideration of the defendant’s assent to the motion, to notify the affiant of the day fixed by the court, and that the said Myers promised to so inform the affiant, and that the interview terminated with the understanding on the part of the affiant that the motion would be heard the next day, and that with the consent of all parties a day would be fixed in December for the trial of the cause, and affiant states that he had every reason to believe that this action had been taken by the attorneys of the plaintiff and the day so fixed; that the affiant had no notice of any alteration or failure of this arrangement, and that in consequence of his belief and understanding that it had been carried out affiant did not attend court on Monday, the 20th instant, as he otherwise would have done; that in his absence the cause was called and judgment entered for the plaintiff by default, and that he had no knowledge that a day had not been set for the trial in December, or that the cause had been called on Monday, until he saw the notice of the judgment in Tuesday’s papers. Affiant states that the defendant has a good and legal defense to the said action and is ready to try the same at any time, and that if there was any negligence in the defendant’s not being in court on Monday prepared to show his defense to the court it is the fault of affiant and not of the defendant, as the affiant notified the defendant after the interview with the said Myers that the cause would not be called on Monday, but that a day would be set for trial in December.
    Edwin W. Spalding.”
    “ Sworn to and subscribed before me this 23d day of November, 1893.
    [seal] Frank B. Marlow, Notary Public.”
    A counter-affidavit of one of the attorneys for the plaintiff followed, denying some of the statements contained in the foregoing affidavit and explaining others; and on December 7, 1893, an affidavit of the defendant himself was filed, in which the "statements contained in the affidavit attached to his plea were reiterated, that the note sued on was void for want of consideration and that the plaintiff had rendered him no services. The motion to set aside the judgment was overruled December 9, 1893; the defendant noted an appeal on the 18th of that month, and on the 22d directed the clerk of the lower court to issue a citation to the appellee. The citation was issued on the same day and returned by the marshal “ not served for want of fee,” January 1, 1894. On the 22d of January another citation was issued by order of the defendant’s attorney, and returned served January 24th.
    The printed transcript of the record was filed in this court March 3, 1894, and on the following day a motion was made by the appellee to dismiss the appeal on the following grounds: 1st. Because the order appealed from was not an appealable order; 2d. Because the motion to vacate the judgment was a nullity; and, 3d. Because due notice of the appeal was not given by the issuance of service of citation within the time prescribed by the rules of court.
    By an affidavit of the appellant’s attorney, filed in this court, it appeared that the marshal’s fee was paid, and the failure to serve the first citation was not the fault of the appellant.
    On the hearing the motion to dismiss the appeal and the merits of the appeal were both discussed.
    
      Messrs. Willoughby & Willoughby for the appellant:
    1. Counsel for appellees have moved for a dismissal of the appeal, assigning as one of the grounds thereof that the citation was not issued and served in time.
    They have appeared, however, generally in the cause, and a general appearance is a waiver of all such defects. Knox v. Summers, 3 Cr., 496; Jones v. Andrews, 10 Wall., 327 ; Dayton v. Lash, 94 U. S., 112.
    2. The court has jurisdiction of the appeal from the order made in this cause, such order being a final order. Sec. 7 of the act of February 9, 1893, establishing this court.
    The time during which an appeal may be taken commences at the date of the order overruling the motion for a new trial. City of Memphis v. Brown, 94 U. S., 715 ; R. R. Co. v. Murphy, 111 U. S., 488; Walden v. Murphy, 23 Cal., 540.
    3. Where a motion to set aside a judgment is overruled the defendant may appeal. Hall v. Holmes, 30 Md., 561 ; Merrick v. R. R., 33 Md., 487; Poe’s Pr., Sec. 389.
    
      Mr. Clarence A. Brandenburg, Mr. T. Percy Myers and Mr. W. D. Davidge, Jr., for the appellee.
   Mr. Chief Justice Alvey

delivered the opinion of the Court:

This appeal comes into this court from an order of the court below refusing to vacate and set aside a judgment and grant a new trial.

There are three questions presented. First, whether the case is properly in this court because of the failure of the appellant to have served on the appellee a citation of appeal within time. Second, whether the order refusing to vacate the judgment and grant a new trial is an order from which an appeal will lie; and, Third, if an appeal will lie from such order, whether the court below was in error in refusing to vacate the judgment and grant a new trial.

1. With respect to the first of these questions, the record shows that the appellant was without fault; that the citation was duly issued within time, but, owing to some mistake or oversight in the marshal’s office, it was not served. This omission or mistake should not be allowed to defeat the right of appeal attempted to be exercised by the appellant. Dayton v. Lash, 94 U. S., 112. Besides, the appellee has appeared in this court, and in addition to a motion to dismiss the appeal upon the ground of non-service of citation, resists the appeal upon the other and distinct grounds than that of failure to serve citation; and this, we think, operates as a waiver of the citation. Jones v. Andrews, 10 Wall., 327.

2. As to the second question, that we understand is not pressed, though not expressly waived. In cases where applications are made to vacate judgments for any of the specific causes mentioned in the Maryland act of 1787, Ch. 9, Sec. 6, it has been uniformly held that, upon the refusal of such application, an appeal will lie by. the defendant, because the judgment in such case is final and conclusive. Green v. Hamilton, 16 Md., 317 ; Hall v. Holmes, 30 Md., 558; Poe, Pl. & Pr., Vol. 2, Sec. 389.

3. Then, as to the third question, that requires something more to be said. The motion to vacate the judgment is founded upon the alleged deceit and surprise of the defendant or his attorney, and these are among the causes mentioned in the act of November, 1787, Ch. 9, for vacating judgments. By that act, Section 6, it is provided: “That in any case where a judgment shall be'set aside for fraud, deceit, surprise or irrregularity, in obtaining the same, the said courts respectively may direct the. continuances to be entered from the court whén such judgment was obtained, until the court such judgment shall be set aside,” etc. The court, in acting upon the motion to vacate or set aside the judgment under this provision of the statute, acts in the exercise of a quasi equitable jurisdiction; and to justify the vacation or setting aside a judgment, proof not less strong and satisfactory of fraud, deceit or surprise, is required than is required in a court' of equity, when the judgment is sought to be annulled there for such causes in obtaining the same. Before a solemn judgment will be vacated upon such grounds, the proof must be clear and beyond reasonable doubt or question.

The action in this case was upon a promissory note, and with the declaration was filed an affidavit of the plaintiff, showing the nature and extent of the claim. The defendant pleaded to the action, denying indebtedness, and with his pleas he filed an affidavit of defense, under the rule of court, simply denying all consideration for the note sued on. The case was ready for trial, and was reached and called for trial in the regular course and order of proceeding of the court. When the case was so reached and called, neither the defendant nor his counsel was present in court, but the plaintiff by his counsel proceeded to trial before a jury, and took a verdict for the plaintiff for the amount of the note with interest, and judgment was entered thereon.

The next day, November 21, 1893, the defendant, by his counsel, filed a motion to set aside the judgment, as having been obtained by deceit and surprise. This motion, however, was not supported by any affidavit appended thereto or filed therewith; and it was not until two days thereafter that the counsel for the defendant filed an affidavit, stating his version and understanding of a conversation that had' occurred, a few days before the trial, between himself and one of the counsel for the plaintiff, in regard to having a time specially fixed for the trial of the case. That, of course, was a matter exclusively within the discretion of the court, whether a special time could be fixed or not. No agreement of the counsel of the parties could control the discretion of the court. The affidavit of the counsel for the defendant has been answered, and in some material particulars controverted, by an affidavit of the counsel for the plaintiff. In answer to the statement in the affidavit filed for the defendant, that counsel was to be informed of the action of the court upon the application to have a day fixed for the trial, it is stated, in the affidavit of the counsel for the plaintiff, that the counsel for the defendant was admonished at the time that he had better be in court when the case was reached in regular call; but he failed to attend.

The motion to set aside the judgment did not conform to the requirement of the rule of court upon the subject. Rule 88 of the Supreme Court of the District provides:

“ The motion must be made in writing, and the grounds upon which it is founded’ must be sworn to by the mover, and supported by affidavits, or otherwise as may be required; and a copy of the motion and accompanying papers must be served on the opposite party at least four days, Sundays excluded, before the day fixed for the hearing,” referring to the Act of Maryland of November, 1787, Ch. 9, Sec. 6.

The facts alleged in the motion were not supported as required by the rule. The defendant, the mover to have the judgment set aside, did not swear to the facts alleged in the motion; and his subsequent affidavit only reiterated what was stated in his affidavit of defense, that there was no consideration for the note. With the question of defense to the action we have nothing to do on this appeal; it is only as to the circumstances under which the judgment was obtained.

The court below appears to have treated the motion as one simply for a new trial, and so ruled upon it, according to the entry in the record. And if we so treat it, of course, no appeal would lie from the ruling of the court. But, treating the case as one arising under the act of November, 1787, Ch. 9, there is no sufficient ground shown for vacating the judgment. A party who neglects his case, or fails to attend the court when his case is regularly called for trial, and thereby allows a judgment to be rendered against him by default, assumes a difficult task to perform, in any subsequent effort to have such judgment set aside. The onus is wholly upon him, and he must furnish clear and indubitable proof of the alleged fraud, deceit or surprise, in order to entitle him to relief. In this case he fails to furnish such proof; and the judgment and order appealed from must be affirmed.

Judgment affirmed.  