Opinion
[No. 377, September Term, 1970.]
Decided March 10, 1971.
APPEAL — Time For Filing Not Stayed — Motion For Reconsideration To Vacate And Set Aside Filed 16 Days After Entry Of Judgment Does Not Stay Running Of Time Within Which An Appeal Must Be Noted — Appeal Filed Some 150 Days From Day Of The Judgment Filed Too Late. p. 307
APPEAL — Motion To Strike Unenrolled Judgment — Appeal From Order Denying Motion To Strike An Unenrolled Judgment Is Subject To Dismissal As One Seeking A Review Of The Exercise Of The Sound Discretion Of Trial Judge — Ordinarily Exercise Of Sound Discretion Of Trial Judge Not Reviewable By Appeal — Record Contains Nothing To Show Or Indicate An Abuse Of Discretion. p. 307
Appeal from the Circuit Court for Montgomery County (MOORMAN, J.).
Judgment of condemnation absolute entered in favor of The Riggs National Bank against the garnishee, Computer Learning and Systems, Inc., the employer of Theodore Wilson Tilghman, III, after the trial court found that an attachment laid by the bank was valid. Tilghman filed a motion for reconsideration to vacate and set aside the judgment of condemnation absolute. The motion was denied and Tilghman appeals.
Appeal dismissed, costs to be paid by appellant.
The cause was argued before HAMMOND, C.J., and BARNES, McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.
Phillip Leventhal for appellant.
Submitted on brief by Joseph E. O'Brien, Jr., for appellee.
The Circuit Court for Montgomery County found that an attachment laid by The Riggs National Bank in the hands of the employer of the appellant Tilghman was valid and on May 12, 1970, entered judgment of condemnation absolute in favor of the Bank for $384.47, the sum confessed by the garnishee. Tilghman filed a motion for reconsideration on May 28. The motion was denied on September 18 by Judge Moorman, and on October 9 Tilghman noted an appeal in general terms, without express mention of either the judgment absolute or of the order denying the motion to strike that judgment. The arguments in Tilghman's brief make it apparent that he considers the appeal to be from the judgment absolute and, if this be assumed, it is at once apparent that his appeal was filed some 150 days from the day of the judgment rather than within the mandatory 30 days, and came too late since the filing of the motion to strike of itself did not stay the running of the time within which an appeal must have been noted. Tiller v. Elfenbein, 205 Md. 14, 19.
If the appeal be considered from the order of September 18 denying the motion to strike the unenrolled judgment, it is subject to dismissal as one seeking a review of the exercise of the sound discretion of the trial judge. Such an exercise ordinarily is not reviewable by appeal. Michigan Nat. Bank v. Racine, 234 Md. 250, 253; Gold Dust Corp. v. Zabawa, 159 Md. 664, 666-667; Suitland Dev. v. Merchants Mort., 254 Md. 43, 54-55; Robin Express v. Cuccaro, 247 Md. 262. The record contains nothing to show or indicate an abuse of discretion by Judge Moorman. Compare J.B. Corporation v. Fowler, 258 Md. 432.
Appeal dismissed, costs to be paid by appellant.