74 Md. 67 | Md. | 1891
delivered the opinion of the Court.
The question in this case is whether the Baltimore City Court erred in refusing to strike out a' judgment rendered therein on the 23rd of September, 1890. Various reasons were assigned in support of the motion, some of which involved the pleadings in the cause, and therefore it is necessary to state what the pleadings were. The suit was brought under the Act of 1886, chapter 184, known as the “Practice Act” or Rule-day Act for Balt-i
No fraud is alleged or claimed to have been practiced in the procurement of the judgment.
This is not an appeal from the judgment, and no error ■of the Court which the appellant supposes was made in •sustaining the demurrer to his plea of invalid consideration can be considered or decided upon an appeal from a refusal to strike out a judgment, which involves only questions of fraud, surprise, or irregularity. But if we could consider the question of void consideration, in the ■exercise of qiccisi equitable jurisdiction, the plaintiff and defendant do not agree in the testimony about it, the defendant insisting that the notes were given in settlement
Payment was pleaded, and issue was joined on it, and the jury rendered a verdict for plaintiff notwithstanding; and consequently this reason is no ground for setting-aside the judgment on this appeal. But the appellant contends that there was no traverse of this plea, and issue only was joined on it, which is claimed to be such irregularity as requires the judgment to be stricken out. There were good counts, and a good issue on them, to-support the verdict and judgment; and although proper pleading required a traverse of the plea of payment, its omission is not sufficient ground for disturbing this judgment.
In Cumberland and Pennsylvania Railroad Company vs. Slack, 45 Md., 178, a like question was presented and decided on a direct appeal from a judgment. Several pleas were filed, and one of them required a traverse-instead of the issue joined: and the Court decided that, although a formal traverse was required by the rules of pleading to have been filed instead of a simple joinder of issue, the omission to file such traverse was no cause for reversal. If on appeal a new trial ought not to be granted for that irregularity, there is no greater reason for sustaining a motion to strike.out the judgment, and grant a new trial. Code, 1888, Art. 75, sec. 9; Poe on Pleading, sec. 721. A motion in arrest of judgment would more properly have raised the question. But under section 9, of Article 75 of the Code, the judgment would not be
Judgment affirmed.