36 Md. 563 | Md. | 1872
delivered the opinion of the Court.
It appearing to the Court, that the writ of diminution heretofore ordered in this case, was ordered improvidently and without sufficient cause; the record in the same being full and complete, and in no respect diminished; an order will be passed quashing the writ.
The appeal is from the order of the Superior Court, overruling the motion of the appellant (plaintiff below) to set aside the inquisition of the jury, and also from the judgment of non pros.
It was decided in Heffner vs. Lynch, 21 Md., 552, that a judgment by default is conclusive of the question of jurisdiction, and of the power of the Court to enter final judgment for the amount ascertained to be due by the inquisition.
That decision did not proceed upon the idea that parties can confer jurisdiction by consent, but that after judgment by default, the question of jurisdiction is not open, and the defendant is estopped and precluded from disputing it. It was error, therefore, for the Court below to enter a judgment of
The case as presented by the narr. was one within the jurisdiction of the Court, and the judgment by default for want of plea, was properly entered, and its binding force and effect could not afterwards be questioned, so far as respected “ the power and jurisdiction of the Court in declaring that the plaintiff was entitled to recover.” Green vs. Hamilton, 16 Md., 317.
But the appellant is in error in supposing that the judgment by default settled the right of the plaintiff to recover the amount stated in his cause of action. On this ground alone the appellant has sought to maintain his appeal from the order overruling his motion to set aside the inquisition. But there is no authority for giving to the judgment by default any such force or effect. If that were so, it would deny to the defendant the right to have the damages ascertained by a jury, and would make such a proceeding idle and nugatory. The defendant was entitled to have an inquisition by a jury; their verdict is not open for examination on this appeal; and it settled the amount which the plaintiff was entitled to recover.
The judgment of nonpros, will be reversed and judgment entered for appellant for the sum ascertained by the jury and costs.
Judgment of non pros, reversed and judgment for appellant.