71 Md. 458 | Md. | 1889
delivered the opinion of the Court.
This action was brought to recover the amount of two promissory notes made hy the defendant to the plaintiffs, dated respectively the 14th of December, 1881, and the 14th of February, 1882, — the first payable at sixty days, and the second at three months. The action was insti
The proceeding was taken under the provisions of the recent Practice Act for Baltimore City, of 1886, ch. 184. The declaration was filed at the time of the institution of the suit, and appended thereto was an affidavit of one of the plaintiffs, and filed therewith were the two promissory notes sued on, as required by section 111 of the Act (now sec. 168 of Art. 4 of the Code of Pub. Loc. Laws); and the defendant, on the 27th of March, 1888, pleaded under oath a single plea, “that he did not promise as alleged, within three years prior to the institution of the suit.” To this plea the defendant demurred, and the demurrer was sustained; though the ruling on the demurrer does not appear to have been made and entered until October 29th, 1888. Tn this ruling the Court was clearly right; for it was not the fact of making the promises at the time alleged that formed the bar to the action, but the accrual of the right to sue on those promises more than three years before action brought. The plea, in the form pleaded, constituted no answer to the action.
On October 6th, 1888, and while the demurrer was pending, or was being held under advisement by the Court, the defendant, without application to or leave from the Court, placed upon record three additional pleas: 1st. That he never was indebted as alleged; 2d. That he never promised as alleged; and 3d. That the plaintiffs were indebted to him in an amount greater than the plaintiffs’ claim, which he was willing to set-off; though he utterly fails to state in the affidavits to these pleas, what part of the plaintiffs’ claim he admits to be due, nor does he state the amount of the claim
The day after the entry of the judgment for the amount of the notes, the defendant filed a motion to strike out the judgment, and assigned as causes therefor, 1st. That there were pleas, containing a good defence, and duly sworn to, on file before any motion to enter judgment was made by the plaintiff; 2d. That the judgment was prematurely entered, and without opportunity to the attorney of the defendant to be heard as to the right of the plaintiff to have the judgment entered; 3d. That there was no copy of the motion for judgment served on the defendant or his attorney, and no notice given of such motion; and on the 14th of January, 1889, an additional reason was filed, to the effect, that the judgment was extended without affording to the defendant, or his attorney, an opportunity to demand a trial by jury of the question of the amount of damages to be assessed to the plaintiff, if any. This motion to strike out was considered by the Court, and, on the 11th of February, 1889, was overruled. The defendant there
In regard to the first of these appeals, that from the judgment, itself, having heen taken more than two months after the date of the judgment, it must he dismissed. 1' Code,’ Art. 5, see. 6. But the questions attempted to he raised on that appeal are raised by the motion to strike out the judgment, and the appeal from the order overruling that motion appears to have heen taken in time.
1. Whether the Court below was right in its refusal to strike out the judgment for the alleged irregularities in entering it, depends upon the proper interpretation of sections 170 and 171 of the Practice Act before referred to. By the first of these sections, it is provided that “In any suit, when the cause of action is a contract, whether in writing or not, or whether expressed or implied, the plaintiff, if affidavit or affirmation he made, as hereinafter stated, shall be entitled lo judgment, to be entered by the Court or the clerk thereof', on motion in writing, at any time after fifteen days from the return day to which the defendant shall have been summoned, although the defendant may .have pleaded, unless such plea contains a good, defence, and unless the defendant, or some one in his behalf, shall, under oath or affirmation, state that every plea so pleaded by the defendant is true, and shall further state the amount of the plaintiff’s demand, if anything, admitted to be due or oiving, and the amount, disputed,” etc. And in the latter clause of the section it is provided, that “in case any part of the debt or damages claimed he admitted to be due, the plaintiff shall be entitled forthwith to an entry of judgment therefor, with costs, in full satisfaction and discharge of the action; provided, the amount so admitted to he due shall not he
The obvious purpose of the Act is not only to furnish a short and expeditious method of recovery in the class of actions mentioned, but, by requiring disclosure under oath, as to the real amount or matter in dispute or actual contest between the parties, to avoid unnecessary trouble and expense in the trial. And while the construction of the statute should he such as to afford to every defendant a full and fair opportunity to make all his defences to the action against him, no such restrictive construction as against the rights of the plaintiff should be adopted as would, to any extent, defeat or frustrate the beneficial objects contemplated hy the Legislature.
By the terms of the section quoted, the plaintiff has a right, at any time after the expiration of the fifteen days from, the return day, to apply for and obtain judgment, as by default, unless there he a plea hy the defendant showing a good defence, and verified in the manner prescribed by the statute. Such plea the defendant may plead at any time within the fifteen days, without special leave of the Court. But, if the fifteen days from the return day have expired, and the plaintiff’s right to
Aswm have already shown, the first plea filed furnished no answer to the action; and the pleas filed as of the 6th of October, 1888, were not only placed upon record without the authority of the Court, and therefore in violation of the terms of the statute, but were not supported by any such affidavit as the statute requires. Adler vs. Crook, et al., 68 Md., 494. These pleas, therefore, were rightly regarded by the Court below as mere nullities, and there was no error in entering the judgment as by default for want of plea. Knickerbocker Life Ins. Co. vs. Hoeske, 32 Md., 317, 325.
2. It is contended that it was a fatal irregularity in the Court below, after entering the judgment hy default, in proceeding to extend the judgment for the amount of the notes, without giving the defendant an opportunity to require the damages to he assessed hy a jury. But we think there is no ground for this contention. If the defendant had required, at the proper time, the assessment of damages to he made hy a jury, rather than hy the Court, he would, no douht, have heen accorded the right. But the great delay in making a question of his right gives rise to the presumption that he did not regard it as of any practical importance to him, and hence he did not avail 'himself of the ample opportunity during the pendency of the question on the demurrer to his polea,, or after the plaintiff’s motion for judgment as hy default, to suggest that he would require a jury to assess the damages. After a defendant is brought into Court, in a suit conducted under the provisions of the statute, he is required to he active and prompt in availing himself of his defences. The defendant here, being in default, had no right to insist that he should he served with notice of the motion of the polaintiff for-judgment, or that he should he called upon to elect whether the damages should he assessed by a jury rather than the Court, under the statute. Knickerbocker Life Ins. Co. vs. Hoeske, 32 Md., 317, 326.
Being of opinion that the Court below was right in overruling the motion to strike out the judgment, we shall affirm the order from which the apprnal is taken.
Order affirmed.