Carey v. Howard

Sloan, J., delivered the opinion of the Court. This appeal is from an order overruling a motion of the appellant to strike out a judgment in favor of the appellee, entered under the provisions of the Act of 1886, ch. 184, Baltimore City Charter (1938) sec. 404, Pub. Loc. Laws, art. 4, sec. 312.

By the direction of Mrs. Harriet B. Jones given June 15th, 1926, the Safe Deposit and Trust Company of Baltimore loaned her nephew, the appellant, §5000, and took his demand note therefor, dated July 1st, 1926, with interest payable quarterly, at five per cent, the interest being paid on the same to January 1st, 1928. Prior to the date of the loan, on May 31st, 1925, Harriet B. Jones had made a will whereby she left the residue, after certain life estates, “to and among such of my nephews and nieces as may be then surviving,” if any of them should die without issue, then to their children, if any of them should leave issue surviving. Later, when the loan was made, the testatrix executed a codicil by which she directed the amount of the loan unpaid at her death to be credited on any legacy she might leave the appellant, and “such, legacy reduced accordingly.” March 17th, 1928, suit was brought on the note, under the Speedy Judgment Act, Act of 1886, ch. 184, Balto. City Charter, sec. 404, Pub.

Loc. Laws, art. 4, sec. 312. There were two returns of non est, with two renewals, ⁵¹⁵ and on January 15th, 1929, there was a return of “Summoned, copy left.” Nothing further was done until January 19th, 1940, when a motion was made for a judgment by default for want of plea and affidavit of defense, and the same day, on satisfactory proof of the correctness and amount of the claim, judgment was entered in favor of the appellee for §7887.50. On February 3rd, 1940, the appellant moved to strike out the judgment, assigning as reasons therefor: 1.

Because the appellee delayed his motion for judgment eleven years after the defendant had been served with notice of the suit. 2. Because the affidavit was not in accordance with the Speedy Judgment Act. 3. Because docket entries were not made as directed by section 307 of the City Charter, (1927 Ed.), Pub. Loc.

Laws, art. 4, sec. 307. 4. Failure to comply with Rules 1, 2 and 5 of the Baltimore City Courts. 5. Because the defendant has a good meritorious defense, “and that prior to the institution of the suit herein, the defendant’s indebtedness to the estate of the said Harriet B. Jones had been either extinguished or materially reduced by the codicil to the will of the said Harriet B. Jones.” The appellee answered, denying each of the allegations and contentions of the appellant. A hearing was had and the motion overruled.

Hence this appeal. The present Speedy Judgment Act in Baltimore City is the Act of 1886, ch. 184, Pub. Loc. Laws, art. 4, sec. 312.

In form the declaration, affidavit and notice conform to the act, and, as required, the note sued on was annexed. This section provides that the plaintiff, unless there is a plea containing a “good defense,” “shall be entitled to judgment to be entered by the Court or the clerk thereof, on motion, in writing, at any time after fifteen days from the return day to which the defendant shall have been summoned.” There is no limit of time when a judgment may be extended after return day, except that it cannot be done within fifteen days. The ⁵¹⁶ act which the Act of 1886, ch. 184, amended (Act of 1864, ch. 6, sec. 7), did limit the time within which a plaintiff might have a speedy judgment, and a plaintiff, failing to have judgment entered by the return day next succeeding the original return day, forfeited his right to have judgment entered. King v. Hicks, 32 Md. 460 ; Jones v. Barnett, 35 Md. 258 .

It evidently