24 Md. 538 | Md. | 1866
delivered the opinion of this Court.
The appellant rests his claim to relief on a judgment by default, obtained in January, 1862, and upon which, as appears from .the record, a final judgment by confession was entered in the month of October following. The Act of 1861, ch. 70, declares that judgments shall be liens, “for their amount and from their date,” on leasehold interests, in the same manner as upon real estate-; and the appellant’s proposition is, that the judgment by default, relied on here, operated as a lien on the leasehold property of the debtor from the time of its rendition.
The character of such a judgment is well defined in our practice. “Judgments by default, on demurrer, and non obstante veredicto, are interlocutory; and final judgment cannot be given until the damages to be recovered are assessed.” Bingham on Judgments, 3. Evans’ Prac., 335. Generally, a defendant on whose default a judgment by default is entered, confesses the cause of action, and the judgment so entered is conclusive in respect to the jurisdiction of the Court and the right of recovery ; but it goes no farther, for the amount remains to be ascertained, and the recovery thereof to be finally adjudged to the plaintiff. Kierstead vs. Rogers, 6 H. & J., 282. Green vs. Hamilton, 16 Md. Rep., 317. Heffner vs. Lynch, 21 Md. Rep.
The' mode of ascertaining the amount for which the final judgment can go, in all cases of interlocutory judgments whereby the right of the plaintiff is established, and the damages cannot be ascertained without the intervention of a jury, is prescribed in the Code, Art. 75, sec. 62. In this class of cases, the final judgment is entered upon the inquisition of the jury; but where the parties fix the amount by agreement, and in that manner waive the inquisition,
The judgment in question here, was clearly interlocutory ; and the record of the case in which it was obtained shows that another and final judgment was entered on the 30th of October following. It was agreed by the parties on the 29th of October, that the judgment should be entered for $277,50, with interest from the 24th of October, 1862, and costs, and it was thereupon adjudged that the appellant should recover from the defendant the amount thus ascertained. This judgment could not, in the nature of things, relate hack and take effect as of the date of the judgment by default; nor could the judgment by default, in establishing the jurisdiction of the Court and the simple fact of the plaintiffs’ right to recover, be said or understood to constitute a recovery. Strictly speaking, there was no recovery until it was adjudged by the Court on the 30th of October; and the only privilege secured to the appellant by the judgment by default, was that of proceeding by inquisition or otherwise, to assess the damages and obtain a final judgment, without delay to the defendant.
Treating the judgment by default as interlocutory, merely, it could not operate as a lien on the real or leasehold property of the defendant. The reason why a judgment constitutes a lien on the property of the debtor, as stated in Combs vs. Jordan, 3 Bland, 284, and in Eschbach vs. Pitts, 6 Md. Rep., 71, is that it clothes the judgment creditor with the right to make his debt out of the land of the judgment debtor ; this right, on the one side, and consequent liability of the debtor’s property on the other, constituting the lien. And it surely cannot be maintained that a creditor is clothed with any such right by an interlocutory judgment, where the amount to be recovered remains to be ascertained, and the recovery of it
Decree affirmed.
