30 Md. 75 | Md. | 1869
delivei’ed the opinion of the Court.
The first appeal in this record was taken from the order passed by the Court of Common Pleas, on the 22d day of May, 1867, staying the writ of execution, and imposing certain terms upon the parties. The second appeal is from an
The second appeal will be first disposed of. It appears from the record that after the first appeal bad been taken and the transcript sent up, a writ of diminution was issued by this Court, on the suggestion of the appellees, for the purpose of having some alleged errors therein corrected. Before the corrected record was sent up under the writ of diminution, the motion to have the docket entries amended and completed was made, and was accompanied with an affidavit of one of the attorneys of the appellants. It was overruled, as appears by the order, because the Court was of opinion “that the tepn in which said proceedings are alleged to have occurred having passed, and the Court of Appeals, upon the writ of diminution in the cause issued by it, haying ordered that the docket entries be returned as they actually stand upon the docket, it would be improper to grant said motion."
We think the learned Judge was in error as to the purport and design of the writ, and his powers and duty in the premises. If satisfied either from his own knowledge of what had actually occurred in the progress of the cause — or from evidence adduced — -that the docket entries as made by the clerk were erroneous or incomplete, it was within his power and his plain duty to have them corrected, so that a full, true and perfect transcript of the whole proceedings as they actually occurred in the progress of the cause might be sent up, in obedience to the writ. If we were at liberty on this appeal to consider only the reasons assigned for overruling the motion, we should be compelled to reverse the order of the 22d of October. But the subject matter embraced in the motion is one which rested exclusively in the judgment and sound discretion of the Court below, and its decision thereon is therefore final and cannot be reviewed on appeal. Howard and Wife, et al. vs. Waters, et al., 19 Md., 529, and Waters vs. Waters, 26 Md., 53.
The appeal from the order passed on the 22d of October, 1867, must be dismissed.
"We now proceed to consider the .first appeal, taken from the order of the 22d of May, 1867.
The first question presented is whether this Court has jurisdiction to entertain the appeal.
Since the decision of Munnikuyson vs. Dorsett, 2 H. & G., 374, affirmed in Green vs. Hamilton, 16 Md., 317; Mailhouse vs. Inloes, 18 Md., 328, and Graff & Gambrill vs. The Merchants and Miners’ Trans. Co., 18 Md., 364, it must be considered as settled that an appeal lies from an order striking out a judgment, passed after the lapse of the term in which it was rendered.
In this case an execution had been issued upon the judgment, which was stayed by the order appealed from. The effect of the order was to deprive the appellants of the benefit of the execution; that a party aggrieved by such an order has the right of appeal is settled by the cases of Harris vs. Wilmer, 5 H. & J., 2, (note;) Hollingsworih vs. Floyd, 2 H. & G., 87, and Graff, &c. vs. M. & M. T. Co., 18 Md., 364, above cited.
The appeal being properly before us, it remains to examine the reasons assigned in support of the motion to strike out the judgment. These are based upon supposed irregularities appearing on the face of the record, and in considering them, we shall confine ourselves to the record as returned under the writ of diminution.
The suit was instituted by the appellants under the Act of 1864, ch. 6, to the May Term, 1866. No objection is made
The alleged irregularities in the proceedings are supposed to consist:
First. In the omission to send with the copy of the nar. and the summons, a copy of the affidavits filed or some notice thereof.
Second. In the failure or omission to strike out the judgment by default, entered on the 18th of May, upon the appearance of the defendants before the first return day thereafter, as provided by the fifth section.
Third. That no judgment by default for want of sufficient pleas properly verified, was in fact entered or extended; but that the only judgment entered, was the judgment by default for want of an appearance, which was erroneously allowed to stand, and which was the judgment extended by the Court.
These are substantially the objections relied on in the argument, and they will be considered in the order above stated.
1st. The Act of 1864, requires a plaintiff at the time of bringing the action to file with the declaration, an affidavit, with the vouchers of his claim; such filing is notice to the defendants; the act does not require any other notice to be given; the failure, therefore, to send a copy of the affidavits, with the copy of the nar., to be served on the defendants, was no irregularity and presents no sufficient ground for impeaching the judgment.
2d. In the record, as it comes before us, it is not affirmatively stated that the judgment by default for want of appearance, entered on the 18th of May, 1866, was stricken out on the appearance of the defendants being entered. But the legal effect of their appearance to the action, within the time prescribed by the act, was to annul that judgment; such is the force and effect of the fifth section of the Act. The legal
3d. Was there a judgment entered for want of sufficient pleas, which was regularly extended by the Court? This depends upon the proper construction of the record. This shows that after the first default had been entered two of the defendants appeared by attorney, and filed three pleas, (two to the merits and a plea of limitations;) these pleas were not verified by oath as required by the seventh section of the Act.
At the next regular rule day, on the second Monday of June, the plaintiffs’ attorney moved to strike out the pleas, and for judgment against the defendants.
The record then states: “Whereupon the Court passed and filed in said cause the following order to extend judgment, to wit:
“ Greff, &c.
vs.
Fickey, &c.
* In the Court of Common Pleas.
“ Judgment by default, June rule day, 1866.
“Ordered this eleventh day of June, 1866, that the judgment by default in this cause be extended against Frederick Fickey, Senior, Frederick Fickey, Junior, and Andrew J. Fickey, for nine hundred and thirty-eight dollars and thirty-eight cents, for damages assessed by the Court, with interest from the eleventh day of June, 1866, and costs.
“JOHN C. King.”
“ Memorandum: — In conformity to the foregoing order, the extension of the judgment mentioned in said order was entered*81 against the said Frederick" Fickey, Senior, and Frederick Fickey, Junior, and Andrew J. Fickey, on the 11th day of June, 1866, for the sum of $938.38, with interest from said 11th day of June, 1866, and costs.
“ Test:
Jas. I). Lowry, Cl’h.”
We can give no other construction to this part of the record, than that a judgment by default for want of sufficient pleas, was entered on the June rule day, 1866; and that the judgment so entered was on the same day extended by the Court. The plaintiffs were clearly entitled to claim such judgment, they had asked for it by their motion; and it seems to us the plain import and meaning of the entry, “judgment by default, June rule day, 1866,” is that the judgment was entered on that day. It cannot refer to the judgment by default for want of appearance, which had been entered on the 18th day of May, preceding; and which as we have said had been annulled and set aside by the appearance of the defendants. If there were more ambiguity than actually appears in the record, we should be bound to presume that the action of the Court was in accordance with the law. But it is unnecessary to rely upon presumptions in this case, as it sufficiently appears from the record there was a judgment by default entered on the 11th day of June, 1866, and that the same was regularly extended by the Court.
There being no error or irregularity in the proceedings of the Court below appearing upon the record, it follows that there was no sufficient grounds for the motion to set aside the judgment, and that there was error in passing the order of the 22d of May, 1867, which virtually set aside the judgment, and deprived the appellants of the benefit of their execution regularly issued thereon.
We do not deem it necessary to notice particularly the terms of the order, except to say they appear somewhat anomalous, and it seems to us without precedent in Courts of Law.
Being of opinion there is no sufficient ground for interfering with the judgment and execution in this case, we reverse the order passed on the 22d day of May, 1867, so that the appellants may have the benefit of their writ of execution.
Order reversed.
