
    AUGUSTUS M. GEESEY vs. GEORGE L. STOUCH.
    
      Striking Out Judgment.
    
    A judgment will not be stricken out upon the mere ex parte affidavit of the defendant. The motion to strike out must be supported by clear and convincing proof of the facts relied upon.
    Appeal from the Circuit Court for Frederick County (Motter, J.)
    The cause was argued before McSherry, C. J., Fowler, Briscoe, Page, Boyd and Schmucker, JJ.
    
      J. F. R. Heagey (with whom was Frank L. Stoner on the brief), for the appellant.
    
      Eugene L. Rowe, for the appellee.
   Fowler, J.,

delivered the opinion of the Court.

This appeal presents a very narrow question of practice, and we will dispose of it briefly.

A judgment was rendered against the defendant, Augustus M. Geesey, 16th November, in 1883, in the Circuit Court for Frederick County in favor of William R. Stouch and others co-partners, for the sum of three hundred and ten dollars. On the 2nd May, 1895, within twelve years from the rendition of the judgment, a writ of scire facias was issued and returned nihil, and on the 15 th July, of the same year, scire facias was again issued and a similar return was made by the sheriff. Upon these two nihils judgment of fiat executio was entered on the 19th August, 1895. On the 8th of December, 1900, the defendant filed a motion to strike out the judgment of fiat; (1) Because it was obtained without notice ; (2) because the Court was without jurisdiction; (3) because the judgment was a surprise to him ; (4) because the judgment was paid, and (5) because the defendant is not indebted to plaintiff. The plaintiff made affidavit before a Justice of the Peace that “ the matters and things set out in the aforegoing motion are true to the best' of his knowledge, information and belief.” The motion was heard by the Court on the 7th February, 1901, and the defendant having failed so far as the record shows, to produce any testimony whatever, to sustain the facts on which his motion was based, it Was, in our opinion, properly overruled by the learned Judge below. Motions to strike out judgments should be supported by clear and convincing proof in addition to the ex parte affidavit of the defendant. As was said by this Court in the case of Johnson v. Foran, 58 Md. 148, “ It would be anomaly in legal proceedings, if the highest evidence of debt known to the law—the record of a judgment—could be nullified and set aside by an ex parte affidavit, taken without notice to the party .against whom it is to be used, and which, if taken to be true, would fix upon him the stigma of fraud and deceit.”

(Decided November 22nd, 1901.)

The judgment appealed from will therefore be affirmed, without prejudice however to the right of the defendant to file his motion in the Court below to strike out judgment of fiat 'executio, and support' it by such material and proper evidence as he can produce.

Judgment affirmed without prejudice.  