1664 PLEADINGS, PRACTICE AND PROCESS AT LAW. [ART. 75

1904, art. 75, sec. 62. 1888, art. 75, sec. 60. 1860, art. 75, sec. 38.
1787, ch. 9, sees. 5, 6.

62. Where a new trial is granted, or a commission shall issue for the
taking of testimony, or where a judgment shall be set aside for fraud
or irregularity, the court may continue the cause so long as they shall
deem necessary for a trial of the same on its merits.

The power to set aside Judgments for fraud, surprise, etc., is a common
law power. This section assumes that such power resides in the courts.
Craig v. Wroth, 47 Md. 283. And see Johnson v. Lemmon, 37 Md. 345;
Taylor v. Slndall, 34 Md. 40; Kemp v. Cook, 18 Md. 137.

In acting upon an application for relief for reasons mentioned in this
section, the court exercises a quasi equitable power according to the facts
and circumstances of the case. Waters v. Engle, 53 Md. 182; Montgomery v.
Murphy, 19 Md. 580.

This section referred to in deciding that during the term at which a Judg-
ment is rendered, it is under the control of the court, and may be stricken
out for fraud or irregularity. King v. Hicks, 32 Md. 463.

This section shows the power of the court to strike out an interlocutory
decree or Judgment, on the ground of surprise. Hall v. Sewell, 9 Gill, 155.

Where a judgment is entered on Sunday, procedure should be taken under
this section to strike it out for such irregularity. Ecker v. First National
Bank, 62 Md. 523; Brldendolph v. Zeller, 5 Md. 63. And see Bridendolph v.
Zeller, 3 Md. 334.

This section does not apply where the reason for opening a case is that
the verdict was against the evidence or that the defendant was not present
at the inquisition. Green v. Hamilton, 16 Md. 330.

Where a Judgment is stricken out, the court must order regular contin-
uances under this section, and an appeal lies for a failure so to do. Mun-
nikhuyson v. Dorsett, 2 H. & G. 379. And see State v. Cox. 2 H. & G. 382.

Where a party has the right to proceed under the act of 1787, ch. 9, and
does so, the Judgment being against him, is conclusive, and an injunction
restraining the execution of the Judgment will not be granted. Gardner v.
Jenkins, 14 Md. 62.

Held that a decree for the plaintiff should be revoked upon the payment of
the costs by the defendant. Burch v. Scott, 1 Bl. 129.

Cited but not construed in Bond v. Citizens' Bank. 65 Md. 499; Raub v.
Carpenter. 187 U. S. 162.

Ibid. sec. 63. 1888, art. 75, sec. 61. 1860, art. 75, sec. 39.
1787, ch. 9. sec. 7.

63. Where a party to a suit dies and new parties are made or to
be made, the court may continue the case so long as may be deemed
necessary for the due administration of justice, not exceeding the end
of the fourth term after the death is suggested, unless by consent of
parties, or testimony or plats are wanting.

This section referred to in upholding a suit against a party who was at
the time deceased, where his administrators appeared to the action. Young
v. Citizens' Bank. 31 Md. 70.

Ibid. sec. 64. 1888, art. 75. sec. 62. 1860, art. 75. sec. 40.
1785. ch. 80. sec. 2. 1888, ch. 116.

64. Where a party in any action to recover lands, or in which the
title thereof is involved, shall die and the proper person to be made a
party in place of the person so dying shall be an infant, such action shall
not abate or be suspended until the infant or infants attain full age of
twenty-one years; but the actual guardian may and shall be made a
party to prosecute or defend, and if there be no actual guardian the
court, on the motion of any party to the suit, shall appoint a guardian