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McKIM AND KENNEDY VS. MASON. 211 It was then thought, that these judgments could not be per- mitted to impair the rights of third parties, because of the omission of the sheriff, by the consent of the plaintiffs, to give the public the notice directed by the Act of 1838, ch. 205, which notice by the 9th section of the supplementary Act of 1845, ch. 287, is required to furnish precise and full informa- tion of the amount of the claim, and other particulars interest- ing to all persons who may be concerned. It is insisted, that as Baltimore County Court had jurisdic- tion to render these judgments, and the omission to give the notice was a mere irregularity, which (though perhaps ground of reversal on appeal) no Court in a collateral proceeding can for that reason refuse to give them full effect. The question, however, is not whether the judgment shall have effect against the parties who were notified of the pro- ceeding, but, whether they shall conclude persons who had no notice either actual or constructive, and who consequently have had no opportunity of defending their rights. It appears to me quite plain, that the legislature never, intended in pass- ing these laws, to affect the interests of parties who had no notice, actual or constructive, of the proceedings under them; and I am by no means prepared to say, that if the person claiming the lien chooses to limit his remedy to the defendant and the person in possession of the building, that he may not do so. Surely it would be everywhere and with one voice denounced as violative of the plainest principles of justice, that the rights of parties should be concluded by a judgment, when they were not only not summoned to resist it, but where a studious effort appears to have been made to keep them in ignorance of the proceedings which led to it. I do not, of course, mean to be understood as intimating that such design existed in this case, but simply as indicating the manifest injustice of holding the Bank to be affected by a judgment of which, upon the face of the record, they had not and were not intended to have notice. I hold, therefore, that in denying to these judgments the full effect attributed to them, I am not impairing their efficacy |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
| Volume 200, Volume 3, Page 211 View pdf image (33K) |
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