4 App. D.C. 356 | D.C. Cir. | 1894
delivered the opinion of the Court:
It was contended on the part of the plaintiff that the foregoing affidavit was not sufficient to show a valid defense to the action, and therefore the plaintiff was entitled to have judgment rendered under the rule for the amount claimed in the declaration and the particulars of demand; the demand being for the amount of the award. The 73d Rule of court requires that the defendant “ shall file along with his plea, if in bar, an affidavit of defense denying the right of the plaintiff as to the whole or some specified part of his claim, and specifically stating also, in precise and distinct terms, the grounds of his defense, which must be such as would, if true, be sufficient to defeat the plaintiff’s claim in whole or in part.” The grounds of defense are clearly enough stated, but the question is, whether the facts stated are sufficiently specific to support the grounds of defense set forth in the pleas ?
As will be observed, the subject matter of the reference was the litigated claim involved in the pending action of the present plaintiff against the defendant. That action is still pending, though it is contended on the part of the plaintiff that the reference operated as a discontinuance of such action. In that, however, we do not agree. That action is in fact still pending, and it appears that the referee, as well
By the Maryland statute of 1778, Ch. 21, Sec. 8, in force in this District, it is provided, “ That, if any cause instituted, or hereinafter to be instituted, in any of the courts of this State, shall, by rule of court, and by the consent and agreement of the parties thereto, be submitted and referred to the award and arbitrament of any person or persons, it shall and may be lawful to and for such courts to give judgment upon the award of the person or persons to whom such submission and reference shall be made, as of the court to which such award shall be returned, and to award execution thereou, in the same manner as they might do upon verdict, confession or non-suit, and that such judgment shall have the same effect, to every intent and purpose, as any judgment upon verdict or confession would have.” And by the subsequent Maryland Act of 1785, Ch. 80, Sec. 11, it is provided “ that all causes referred by consent of parties and rule of court, shall be continued until an award is returned, and if death of either of the parties happen before an award returned and judgment thereon, such cause shall not abate by the death,” and so forth.
It is argued on the part of the plaintiff, that the reference now in question was not made by or under rule of court,
We must therefore affirm the ruling of the court below, denying the motion of the plaintiff for judgment under the rule, and remand the cause that it may be proceeded with in due course.
Ruling affirmed, with cost to appellee, and cause remanded.
Seventy-third Rule. — In any action arising ex contractu, if the plaintiff or his agent shall have filed, at the time of bringing his action, an affidavit setting out distinctly his canse of action, and the sum he claims tobe due, exclusiveof all set-offs andjustgrounds of defense, and shall have served the defendant with copies of his declaration and of said affidavit, he shall be entitled to a judgment for the amount so claimed, with interests and costs, unless the defendant shall file, along with his plea, if in bar, an affidavit of defense denying the right of the plaintiff as to the whole or some specified part of his claim, and specifically stating also, in precise and distinct terms, the grounds of his defense, which must be such as would, if true, be sufficient to defeat the plaintiff’s claim in whole or in part. And where the defendant shall have acknowledged in his affidavit of defense his liability for a part of the plaintiff’s claim as aforesaid the plaintiff, if he so elect, may have judgment entered in his favor for the amount so confessed to be due.
Sec. 2. The provisions of this rule shall not apply to defendants who are representatives of a decedent’s estate except when the affidavit filed with the declaration sets forth that the contract sued on was directly with such representative, or that a promise to pay was made by him.
Sec. 3. When the defendant is a corporation, the affidavit of defense may be made by an officer, agent, or attorney of such corporation.