Parkhurst v. Citizens National Bank

61 Md. 254 | Md. | 1884

Robinson, J.,

delivered the opinion of the Court.

This suit is brought under the Procedure Act of 1864, chap. 6, passed for the purpose of despatching business in the Superior Court and the Court oí Common Fleas of Baltimore City.

The Act provides, the plaintiff must at the time of bringing the suit, file with the declaration an affidavit, stating the true amount due by the defendant, and must also file at the same time, the bond, bill of exchange, promissory note, or other writing, or account, by which the defendant is so indebted.

The plaintiff in this case, is a National Bank, and the question is, whether the cashier is the proper officer to make the affidavit? The right of the plaintiff to sue under the Act, was not and indeed could not be disputed. If so, the affidavit must be made by one of its officers or agents; and considering the duties and powers of a cashier, he is the proper person to make it. * To him is submitted the funds of the Bank, and through him, as the executive officer, its financial operations are mainly conducted. He has the means of knowing the dealings between the Bank and its debtors, and it is his duty to superintend the collection of debts due to the Bank, and to make such arrangements as may facilitate that object, and to do anything in relation thereto, that an attorney may lawfully do. If an affidavit is to be made, stating the precise sum due by a debtor to the Bank, ho is the proper officer to make it. Trenton Bank vs. Haverstick, 6 Halsted, 172; Mix vs. Andes Ins. Co., 74 N. Y., 55; Shaft vs. Phœnix Mutual Life Ins. Co., 67 N. Y., 549; Angell & Ames on Corp., secs. 299, 366.

There was no error, therefore, on the part of the Court in refusing to strike out the judgment in this case on this ground.

The next question, is whether the Court had the power to correct the docket entries? The original entries made by the clerk are “Harr., copy of promissory note, affidavit and notice to plead, &c.” By the entries thus made, it is contended, that the plaintiff at the time of bringing the suit, filed a copy of the promissory note, and not the note itself as required by the Act. But the affidavit of the writ clerk shows beyond question, that the entry “copy of promissory note,” was erroneously made by him, and that the original note, was in fact filed with the narr. The mistake occurred in this way: — The plaintiff brought two suits on the note, one against Jared Parkhurst, Jr.,, trading as Parkhurst & Co., endorser, and the other against Andrew R. Parkhurst and A. D. Patrick, trading as Parkhurst & Patrick, as makers. The promissory note was attached to both narrs., and the three papers, the two narrs. and the promissory note, were filed together. The writ clerk detached the note from the narr. in the suit against Parkhurst & Co., and in its place filed a certified copy thereof, thus leaving the original note attached to the narr. in the suit against Parkhurst & Patrick; and in making the docket entries, he by mistake entered on the docket “ copy of promissory note ” instead of “promissory note,” thus making it appear that a copy• of the note had been filed and not the original note as-required by the Act.

(Decided 25th January, 1884.)

Upon the affidavit of the writ clerk the Court very properly directed the entries to be corrected, and the proper entries to be made in conformity with the facts as they occurred. As thus corrected, the docket entries show, that the original note was filed at the time of bringing the suit.

The affidavit of the clerk was admissible for the purpose of showing that the docket entries were made by him through mistake, and the motion to strike out the judgment was properly overruled.

Order affirmed.

Appeal of Parkhurst and Brady:—

It appears that an attachment was issued on the judgment recovered against Parkhurst & Co., and laid in the hands oí' George T. Parkhurst and John W. S. Brady, copartners, garnishees. Motion was made by the garnishees to quash the attachment, which motion was overruled. The record does not show that a judgment of condemnation was entered on the attachment. So the appeal is simply from an order of the Court, overruling a motion to quash an attachment. From such an order it is well settled, no appeal will lie. Mitchell vs. Chestnut, et al., 31 Md., 527; Baldwin, et al. vs. Wright, et al., 3 Gill, 241.

The appeal in this case must therefore be dismissed, because no final judgment has been entered.

Appeal dismissed.

(Decided 25th January, 1884.)