Acklen v. Fink

Briscoe, J., delivered the opinion of the Court. The appellee brought suit against the appellant in the Circuit Court for Howard County on the 17th .of August, 1901, to recover for the breach of a contract, and on the 20th day of March, 1902, a judgment was entered, under an inquisition, in favor of the plaintiff for $5,000 with interest and costs. On the 9th of April, 1902, the appellant filed a motion to strike out the judgment, and from the order overruling this motion an appeal has been taken. The appellant filed thirteen reasons in the Court below, but those relied upon here and urged at the hearing, are, first: because the judgment was irregularly entered and operated as a surprise to the defendant ; second, because the plaintiff failed to file a narr. in accordance with the rule of the Court; third, because the defendant was not laid under rule plea as he should have been ; fourth, because the defendant was never served with a copy of the narr. after it had been filed, and fifth, because the defendant has an entire and meritorious defence and would have shown the same, if he had an opportunity to defend the suit.

The sufficiency of the reasons relied upon by the appellant are denied by an answer filed by the appellee. The. view we take of this case after an examination of the- record makes' it unnecessary for us to pass upon all of the objections urged by the appellant, because many of them are technical and cannot avail the appellant on this appeal. •It appears from the docket entries filed in the case, that the defendant was duly summoned to the September term, 1902, a regular term of the Circuit Cpurt for Howard County, and did not appear in person or by attorney to defend the action. On the 9th of April, after the judgment had been entered, he appeared and moved to strike out the judgment which had ⁶⁵⁷ been entered in the case. The defendant having been duly-summoned, and the Court having jurisdiction over the cause and the party, the appellant, was clearly in default, under the rule which required him to plead, when the interlocutory judgment was entered by the Court below, on the 17th of March, 1902.

According to the docket entries, the following proceedings were had : “28th August, 1901, order fd. Spna. issd. Sd. 2nd. September, 1901, P. P. under rule for deft, rule narr and contd. 1 ith February, 1902, narr id. 17th March, 1902, interlocutory judgment. 18th March, 1902, jury sworn and damage assessed at $5,000 and costs.