39 Md. 258 | Md. | 1874
delivered the opinion of the Court.
The appellant on the 26th of March, 1872, executed and passed to Cyrus M. Gardiner, his promissory note for $394.57, payable sixty days after date, for value received,
1st. Was there such irregularity in entering the judgment as to require it to be stricken out?
2nd. Was the appellant at the time he executed the note and power of attorney, so intoxicated as to be incapable of contracting ?
1st. As respects the first question, the affidavits shew that the plaintiffs’ attorney presented the papers above
The appellant contends that Mitchell had no power in the absence of a written order from the Judge to that effect, to make this entry in the clerk’s office, and not in open Court, the acting clerk having made at the time no minute of the Court’s verbal order. In Weighorst vs. The State, 7 Md., 442, the docket entry of a verdict was “guilty of murder in the second degree,” and this was afterwards extended in more formal and technical language, which appeared in the record transmitted to the Appellate Court. In answer to the objection that the clerk had no power thus to amplify the finding of the jury, the Court said : “It has always been the habit of clerks to take minutes and docket entries of the Court’s proceedings and subsequently to enter them at length in
In Montgomery vs. Murphy, 19 Md., 576, there was a motion to strike out the judgment on the ground that it was entered by mistake, and was not the proper judgment to he entered. .That was an action of assumpsit for work and labor, and goods sold and delivered. Besides the general issue, the defendant pleaded limitations,.and also demanded a bill of particulars. The case was then continued, and the plaintiff admitted service of the rule replication, and notice of the demand for a bill of particulars, but filed neither. In this state of the pleadings, the Court clerk at the following term, entered upon the docket in open Court, the simple entry “judgment,” and then out of Court, and after its adjournment, directed the recording clerk to enter “pleas withdrawn, and judgment by confession ;” and the record states “judgment was rendered in this action on the 15th of September j 1855, for $3000 damages in narr. and costs, to be released bn payment of $1520.69, with interest from the 15th May, 1854, and costs.” There was no proof that any order, written or verbal, was given by the Judge to make this entry, nor of any order or agreement stating the sum on payment of which, the judgment was to be released. The affidavits of the defendant and his attor
2nd. In considering the second question, it must be observed, there is no proof that the consideration of the
We have examined the affidavits in view of this rule of law, and are of opinion, the weight of testimony fails
In our judgment this testimony outweighs, in probative force on the question at issue, the proof adduced on the part of the appellant, and we therefore find no error in the action of the Court in overruling these motions.
Judgment affirmed.