Baltimore & Ohio Railroad v. Ritchie

Grasos, J., delivered the opinion of the Court. This cause being at issue in the Court below, and the ¹⁹⁶ attorney of the appellant having left the State, a rule was laid upon it to employ new counsel, or that judgment would be rendered against it by default. At the October Term, 1866, one year after the above rule was laid, no counsel having appeared, judgment by default was rendered against the appellant “ on the rule to employ new counsel.” At the October Term, 1867, an inquisition was had, and the damages assessed, at which time an attorney appeared for the appellant, and participated in the proceedings. The first question to be considered is, whether a Court can legally lay such a rule, or enter a judgment by default against a defendant, who has failed to comply with it when the case is at issue.

It was contended by the counsel for the appellee that the Court had the power so to do, and relied upon the case of Darnall vs. Harrison, 1 H. & J., 137 , in the General Court, as authority for the practice. In that case the rule to employ new counsel not having been complied with, and an affidavit having been filed showing that a copy of the rule had been served on the defendant, the plaintiff, at the same term at which the rule was laid, moved the Court for judgment or trial, and it was “ruled accordingly.” The motion being for judgment, or trial, it does not appear that the plaintiff would not have been required to proceed ex parte with the trial, instead of a judgment by default being entered; for the rule was not enforced, as an appearance was entered for the defendant and a judgment confessed. That ease is therefore no authority for the practice contended for by the appellees’ counsel. It was further urged that this Court must intend that, in laying the rule and entering judgment by default against the appellant for not having complied with it, the Court below acted in accordanee with its established rules, and that, therefore, the judgment by default must stand.

It does not appear from the record that there was any such rule of Court, and this ¹⁹⁷ Court will not intend the existence of a rule which is based upon neither justice nor any provision of law. The Court below had no authority to lay such a rule, nor to enter the judgment by default upon a non-compliance with it, and the judgment must be reversed. The appellant had once appeared to the suit by its attorney, and had filed its pleas denying the appellees’ right to recover, and upon a failure to comply with the rule to employ new counsel, a rule adopted out of courtesy to suitors, the only power the Court could rightfully exercise was to authorize the appellees to proceed ex parte with the trial of the cause. It was also contended by the counsel of the appellees that, as the appellant employed an attorney after the judgment by default, who participated in the proceedings at the time of the taking of the inquisition, without having moved to strike out the judgment by default, all irregularities in the judgment were waived, and that the appellant is estopped from urging any objection to that judgment in this Court.

We cannot concur in this view of the case. The, appellant had the right to participate in the taking of the inquisition for the purpose of preventing evidence, not legally admissible, from being submitted to the consideration of the jury, as well as for the purpose of endeavoring to reduce the damages. This it had a right to do without waiving any, of its rights, and without being estopped thereby from availing itself of any errors in the previous proceedings in the cause, which may furnish sufficient cause for reversing the judgment. As the judgment by default was erroneously entered, and the case may have to be remanded, it becomes necessary for this Court to examine the other proceedings in the cause, for the purpose of ascertaining whether there is any error in them.

The declaration contains but one count, and alleges in-" jury both to the person and personal property of the plaintiff, by reason of his horse having become frightened and ¹⁹⁸ having run away, in consequence of the appellant’s negligence in not having so constructed its bridge, and in not placing safeguards on and about it, for the purpose of preventing horses of persons travelling the turnpike road from being frightened. To this declaration a demurrer was filed containing and assigning four causes of demurrer. We are of opinion that the demurrer was properly overruled, because the first three causes assigned consisted of matter which could not be known to the Court officially, and proof of which could only be furnished by the charter of the appellant, which "was not offered in evidence, and because the fourth cause was not sufficient. > It is true that not more than one distinct cause of action can be pleaded in the' same count, yet where different and Separate injuries have resulted from the same act or cause, the injuries or damages may be united and counted upon in the same count.