29 Md. 465 | Md. | 1868
delivered the opinion of the court.
This appeal is from a judgment of the Court of Common Pleas extending a previous judgment by default for want of a plea. There was no motion in arrest or to strike out the judgment for fraud or irregularity, nor was there any exception taken certifying to this court the facts upon which the *court below acted. The suit was not instituted under the provisions of the 5th, 6th, 7th and 8th sections of the Act of 1864, ch. 6, but in common form invoking the exercise of the ordinary powers of the court 'in the usual course of its procedure. Upon appeal from the judgment of a court of record proceeding according to the course óf the common law, this court cannot reverse the judgment unless it affirmatively appears on the face of the record the court had no jurisdiction over the cause or the parties, or that the judgment was such as the law does not authorize to be pronounced upon the verdict, as was the case in Watkins v. State, 14 Md. 424. Any error or irregularity in the proceedings which does not reach the jurisdiction of the court, or affect, in the sense indicated, the legal validity of the judgment, cannot be reviewed by this
The summons was served upon the defendant by the Sheriff of Baltimore City, and he was therefore prima facie within the jurisdiction of the Court of Common Pleas. If he designed to avail himself of the defense that he was a resident of Carroll County and not of Baltimore City, he should, upon the return of the writ, have moved for a non pros, or presented the objection in some other mode than by the mere filing of the affidavit of a third party, as to his non-residence. When, therefore, the plaintiff’s motion that this affidavit be stricken out “ under the rule ” of the court, was granted, we must *assume, in the absence of the rule on the subject, that the court acted in conformity to its rules in that respect lawfully adopted.
The chief objection relied on in argument is that it was error on the part of the court to lay a rule to plead, and enter a judgment by default, where there was no appearance for the defendant, and English authorities have been cited to the effect that a judgment for want of a plea, signed without any appearance being entered, is a nullity. Whether a judgment so entered in this State, after the party has been returned summoned, could be regarded as a nullity, since the substitution of a summons for the writ of capias ad respondendum consequent upon the abolition of imprisonment for debt, is matter of grave doubt, but it is not necessary that the point should be decided in this case, because it does not affirmatively appear upon the face of this record that an appearance had not been entered for the defendant. By the Code, Art. 75, sec. 85, where a defendant is returned summoned and fails to appear, it is made the duty of the court, on the second day of the term to which the
The remaining objection that the judgment was extended and the damages assessed by the court without the intervention of a jury of inquisition, is equally unavailing. The declaration contains the common counts applicable to a claim upon open account, as well as the count for unliquidated damages for refusal to deliver the hay according to contract, and there is nothing in the record to show what proof was exhibited to the court in support of the plaintiff’s action. The Judge has power under the Act of 1864, ch. 175, to assess damages upon satisfactory proof of the correctness of the account where the suit is to recover a debt due upon open account, and in the absence of all proof to the contrary, we must assume the court in assessing damages in this case proceeded under the common counts, and not under the special count in the declaration.
The appropriate remedy of the appellant for all the matters complained of in argument, was by motion to strike out the
Judgment affirmed.