Stansbury v. Keady

29 Md. 361 | Md. | 1868

Brent, J.,

delivered the opinion of the court.

This appeal is taken from an order of the Court of Common Pleas of Baltimore City, overruling a motion made by the defendants, the present appellants, to strike out the judgment upon an inquisition, and to set the inquisition aside.

The reasons assigned in support of the motion are six in number, and are as follows: 1st. Surprise. 2nd. Because the inquisition should have been had and filed at the term during which the judgment by default was entered, or at the next term succeeding such entry. 3rd. Because the judgment on the inquisition was pronounced on the same day on which the inquisition was rendered. 4th. Because the plaintiff had no sufficient cause of action. 5th. Because no breaches of the *bond were filed; and 6th. Because the record in the replevin suit was not pleaded.

We think the case is wholly free from difficulty, and the questions presented may be disposed of very briefly.

There is nothing in the record to show that any surprise had been practiced upon the defendants, and we may infer that this ground has been abandoned by them, as the brief and argument, filed in their behalf, is entirely silent upon the point.

The objection, that the inquisition was not taken in proper time, is based upon Art. 75, sec. 62, of the Code. There might be some force in the objection if -that section had not been amended and re-enacted by the Act of 1864, ch. 175. That Act was passed on the 23rd of February, 1864, and took effect from the time of its passage. Its provisions apply, therefore, to the inquisition, which was taken and filed in this case on the 16th day of June following. From it are entirely omitted the words of the former law, which, it is claimed, restrict the time of taking an inquisition, either to the term at which the judgment by default was entered, or to,the term next succeeding. We do not perceive any limitation as to time in this law, and think there is none, which invalidates the present inquisition. Nor does it make any difference that the judgment by default was rendered before its passage. It embraces by its terms all cases in which a “ judgment by default has been, or shall hereafter be entered.”

The next objection is equally groundless. The Act just referred to, after requiring the jury to return their inquisition under their hands and seals, directs that “ the court shall order such judgment to be extended in accordance with the terms of such finding by the jury.” If there is any obligation upon the court to delay in making such extension, it must be found outside of the Act. It is contended that the 41st rule of the court, requiring a motion in arrest of judgment to be made on or before the second day succeeding that upon which the verdict shall have been rendered, imposes this ^'obligation. We do not so understand it, and would not be justified in giving to it such a construction. The court may delay, and always will, when satisfied there is any occasion for it, in entering a judgment so as to allow a motion in arrest, but that it must do so in all cases, has neither the sanction of law nor practice.

The judgment by default in this case is a binding and effective one. It stands unreversed and is not before us for review upon this appeal. We cannot go behind it to examine into and determine upon the validity of the replevin bond, which forms the cause of action upon which the suit is instituted. As said in Green v. Hamilton, 16 Md. 329, and reiterated in Mailhouse v. Inloes, 18 Md. 333, “ a judgment by default if regularly entered, (and to this one there is no objection,) is as binding as any other, as far as respects the power and jurisdiction of the court, in declaring that the plaintiff is entitled to recover.”

The fifth and sixth objections, even if there existed in fact and in law any foundation for them, are disposed of by what has been said of the preceding one.

The appellants have also urged, that the damages assessed by the jury exceed the penalty in the bond, and that the inquisition cannot therefore stand. How this excess was obtained, and for what it was given by the jury, we are not informed, but it has been treated in the argument as an allowance of so much interest. This question does not appear from the record to have been raised and decided in the court below, and we are prohibited, by the Act of 1861-2, ch.- 154, from giving any decision upon it. That law provides that “ the Court of Appeals shall in no case decide any point or question which does not appear by the record to have been tried and decided by the court below.”

The appellants have contended that the motion, which is the subject of this appeal, should be regarded in the nature of a motion for an arrest of judgment, while the appellee contends that we should regard it in the nature of a motion for a *new trial. We do not view it in either light. It is a motion to strike out a judgment and to set aside the inquisition upon-which the judgment was entered, and we have treated it as such. Unlike a motion in arrest of judgment, it does not open the whole record of the case, and unlike a motion for a new trial, the judgment upon it of the court below, is the subject of an appeal.

As we find no error in the judgment of the court below, it will be affirmed. ' Judgment affirmed.