136 A. 648 | Md. | 1927
The appellants in this case, on February 13th, 1923, brought an action in assumpsit, under the Speedy Judgment Act of Baltimore City, against Charles H. Towers and James W. Towers, co-partners trading as Charles H. Towers Son, and Charles H. Towers and Anna Towers, his wife, and James W. Towers and Ellen Towers, his wife, individually. The action was commenced by the filing of a "declaration, notice to the defendants to plead, open account, affidavit under the act of 1886, chapter 184, and an election for jury trial." After the writ had been renewed from time to time it was finally, on October 21st, 1925, returned with this indorsement: "Summoned omnes and copy of the narr. and notice to plead left with Charles H. Towers, one of the defendants." No pleas having been filed, the plaintiff, on December 1st, 1925, moved for a judgment by default for "want of a plea and affidavit of defence," and on the same day the judgment by default was entered, the damages assessed, and the judgment extended for $2,064.58. On February 25th, 1926, execution issued on that judgment, and on March 3rd, 1926, Ellen Towers filed a motion to strike out the judgment and the sheriff's return of "summoned" as against her, on the ground that she had not been summoned, had no knowledge of the suit, and that she had a meritorious defence. On March 6th, 1926, Emma Towers filed a similar motion and, on April 20th, after a hearing, the court passed the following orders in respect of those motions: "Petition and motion of Ellen Towers, wife of James W. Towers, to strike out the judgment entered against her `granted,' and lien of the judgment preserved." "Petition and motion of Emma Towers (erroneously designated in the above entitled case as Anna Towers) to strike out the judgment entered against her `granted' and lien of the judgment preserved." "Petition and motion of Ellen Towers, wife of James W. Towers, to strike out the sheriff's return as to her, `overruled'." "Petition and motion of Emma Towers (erroneously designated in the above case *338
as Anna Towers), to strike out the sheriff's return as to her `overruled'." On May 29th, 1926, Emma Towers and Ellen Towers each filed the general issues pleas, together with an affidavit, and certificate of counsel, as required by the act, on which issue was joined (short), and on June 18th, 1926, this appeal was taken from the orders striking out the judgments. Embodied in the record in this court is what purports to be a transcript of the testimony taken at the hearing on the motions to strike out the judgment, but as it is not part of a bill of exception, nor certified by the judge who heard it, or authenticated in any other way, it is not properly in this court and cannot be considered on this appeal. That rule was stated and approved inDumay v. Sanchez,
This suit was brought under the Act of 1886, ch. 184, which conferred upon the common law courts of Baltimore City, in respect to certain classes of actions, special limited statutory powers in addition to such powers as they possessed as courts of general jurisdiction, but before they can exercise the powers conferred by the act, it is necessary for plaintiffs in such actions to comply strictly with the requirements prescribed by the act as conditions precedent to its operation, and which must be regarded as jurisdictional. McDonald v. King,
In the opinion of a majority of the court we are bound by that decision, and it may be said that it is consistent with equity and sound sense, although, in the judgment of the author of this opinion, unwarranted by the language of the statute, that it has been accepted and followed by the profession for over thirty-eight years, and that to overrule it now would result in considerable hardship and inconvenience. Accepting that construction of the statute, as we do, and assuming that the statute required the service of a copy of a declaration on the defendants, it follows, from what was said in De Atley v.Senior,
Counsel for appellees also contended that it was properly stricken out on the ground that the appellants committed a fraud in bringing the suit against the appellees at all. But while that contention has the merit of novelty, we cannot see the force of it. It may be that the plaintiffs' claim is without merit, but that circumstance, while perhaps indicating a want of judgment, is certainly not a badge of fraud, for litigants are not to be charged with fraud merely because they conceive that they have a cause of action where none exists. Nor can the cases cited in support of that contention be said to be in point. In Craig v.Wroth,
Orders affirmed, with costs. *343