Cornblatt v. Block

Thomas, J., delivered the opinion of the Court. Benjamin Bloch leased to Isaac Cluster the premises known as No. 2933 O’Donnell street, in Baltimore City, and certain personal property described in the lease, for the term of ten years, commencing on the 5th of February, 1911, “at and for the yearly rent of” $1,000.00, and on the 5th of Tune, 1914, the Lessee assigned the remainder of the term to Wolf Combi aft, who entered into an agreement under seal to pay the rent reserved in accordance with the terms of tlie lease. This suit was brought by Bloch against Cornblatt in tlie Baltimore City Court under the Rule Day Act to recover rent due under the lease, and on the 25th of April, 1917, on motion of the plaintiff, a judgment by default “for want of plea and affidavit of defense” was entered in the case, which judgment was on the same day extended by the Court (JnixiE Heuisler) for $892.49 and costs of suit. On the 10th of May following Harry B. Wolf, Esquire, who was at that time defendant’s attorney, filed in the case the following order of plaintiff’s attorney and order of Court: “Mr. Clerk: Please strike out the judgment in the above entitled case, with leave to the defendant to file pleas within five days. “William B. Smith, “Attorney for Plaintiff.” ⁴⁶ “Ordered this 10th day of May, 1917, upon the moi tion of attorney for the plaintiff, that the judgment in the above entitled cause be and the same is hereby stricken out, with leave to the defendant to file pleas within five days. “Bobt.

IP. Stanton.” These orders were written on the stationery of Harry B. Wolf, Esquire, and were endorsed as follows: “Consent of plaintiff and order to strike out judgment—Mr. Clerk: Please file. “Attorney for Defendant. “Harry B. Wolf, Attorney-at-Law, Baltimore, Md.” On the 14th of May, 1917, the appearance of Jackson and Jackson was entered in the case as attorneys for the defendant, and on the same day they filed an “election for a jury trial;” entered a demurrer to the declaration, and obtained from the Court (Judge, Heuisler) an order extending the time for filing pleas to fifteen days, after “the final determination of the matters and things raised by the demurrer.” A copy of the demurrer having been served on counsel for the plaintiff, he promptly filed a petition stating that he had consented to the striking out of the judgment for $892.49, with leave to the defendant to file pleas within five days, upon the representation of Harry B. Wolf, attorney for the defendant, that he had forgotten to file pleas within the time required by law; that the Court had accordingly passed the order of May 10th striking out the judgment with leave to the defendant to file pleas within five days; that the time within which the pleas were to be filed in accordance with said agreement and order of Court had expired, and praying that a judgment by default for want of pleas and affidavit of defense be entered in the case. Upon this petition the Court on the 22nd of May, 1917, passed an order that judgment, by ⁴⁷ default in tlie case he extended for the sum of $892.49 and costs of suit, unless cause to the contrary be shown on or before the 25th of May, 1917, provided a copy of the order be served on the defendant’s attorney on or before the 23rd day of May. The defendant answered the plaintiff’s petition and alleged as the1 reason why the prayer of the petition should not be granted, that he had filed his demurrer1 to the declaration and obtained the' order of Court of the 14th of May extending the itme to file pleas before the expiration of the five days in which he was allowed to plead by the order of May 10th.

Affidavits were filed by the plaintiff and defendant and by counsel for the plaintiff and defendant, and after a hearing the Court (Judge Heiuisleb) on the 14th of June, 1917, passed the following' order: “The motion of plaintiff for a judgment by default for want of pleas and affidavit of defense, in accordance with agreement of counsel and order of court of May 10th, 1917, and the answer of defendant to the nisi order on said motion, having come on for a hearing, the proceedings, the affidavits filed by the respective parties, the corroboration made in open court by Harry B. "Wolf of the statement made by plaintiff’s counsel, in so far as his relation to this case was concerned, having been read and considered, and, after argument of counsel, it appearing to the satisfaction of the court that the plaintiff and defendant definitely agreed to settle this case for the sum of $400.00, and that said agreed settlement ought to he effectuated; and it further appearing that the order passed herein on the 14th day of May, 1917, purporting to extend the time for filing pleas was passed by the court inadvertently and without knowledge of the aforesaid agreement of counsel, whereby pleas were required to he filed within five days, it is this 14th day of June, 1917, ordered by the Baltimore City Court that the said order passed herein on the 14th day of May, 1917, he and the same is hereby rescinded; and it is further ordered that the judgment by default in this ⁴⁸ case be extended for $892.49 damages assessed by the court and costs of the suit, and that the defendant pay the plaintiff a counsel fee of $50.00; and it is further ordered that the plaintiff file a remittitur for the sum of $492.49 immediately upon the extension of said judgment of $892.49. “Chas. "W. Heuisler.” The docket entries show that in accordance with said order, judgment by default in the case was extended for the sum of $892.49 and costs of suit on the 14th of June, 1917; that a counsel fee of $50.00 was awarded to plaintiff’s attorney, and that the plaintiff filed a remittitur of $492.49. The defendant then filed a motion in writing to rescind said order of June 14th and to strike out the judgment entered in accordance therewith, but the Court overruled the motion, whereupon the defendant filed the order for this appeal.

The contentions of the appellant are (1) that the judgment of April 25th, 1917, having been striken out with leave to the defendant to file pleas within five days, he had a right to file a demurr.er within that time; (2) that before* the expiration of five days in which he was allowed to plead, he obtained the order of May 14th extending the time for filing pleas, and a judgment by default for want of a plea could not therefore be entered until after the expiration of the time mentioned in said order of May 14th, and (3) that under the 28th Rule of Court, which provides: “Ho agree*ment between parties or their counsel in relation to proceedings in the cause shall be binding, unless reduced to writing and signed by the party to be charged therewith or his counsel, unless the same shall be made in open Oourt,” the Court below had no authority to consider the statements of the parties or their counsel in reference to an agreement to settle the case. The answer to the first and second contentions of the appellant must depend upon the proper construction of the order of plaintiff’s counsel and order of Court of May 10th. ⁴⁹ which were obtained and filed by counsel for the defendant. The judgment of April 25th was stricken out- upon the order of plaintiff’s counsel to the clerk of the Court, and the order of Judge Stahtoet passed thereon, upon the application of counsel for the defendant. By these orders the defendant was granted “leave * * * to file pleas within five days.” A demurrer is not mentioned in the order of plaintiif’s counsel or the order of Court, but the consent of the plaintiff and the leave granted by the Court were expressly limited to the filing of pleas.

In the case of Baltimore City v. Thomas, 115 Md. 212 , Chief Judge Boyd, speaking’ for this Court, said: “A demurrer may in a sense be a pleading. but it is not a plea.” Giving the terms employed their ordinary meaning, it would seem clear that the right granted the defendant to file pleas within five days did not include the right to enter a demurrer to- the declaration. This view of the orders referred to is strengtened by consideration of the circumstances under which they were obtained. Counsel for the plaintiff stated that Mr. Wolf, counsel for the defendant, told him that he had prepared his pleas but had forgotten to file them, and that that was the reason why he, Mr. Wolf, wanted him to consent to the judgment being stricken out, while Mr. Wolf stated: “I was attorney for Mr. Oornblatt and had inadvertently overlooked the matter. My attention was called to the judgment by default, and on May 10th, 1917, I succeeded in having plaintiff’s attorney sign a motion, which T prepared and filed, to strike out said judgment by default, with the understanding that I was to file pleas and affidavit of defense on behalf of defendant in five days from the 10th day of May, 1917.” The power of the Court, in striking out a. judgment, to limit the defenses to be interposed by the defendant to such as may be presented by pleas, is well established.

It is said in 2 Poe’s P. & P., sec. 396-: “The Court, in striking out a judgment, may impose terms * * * for example, that the defendant shall not plead limitations,” and the cases of Mer ⁵⁰ rick v. B. & O. R. R. Co., 33 Md. 485 ; Heaps v. Hoopes 68 Md. 383 ; Coulbourn v. Fleming, 78 Md. 210 and Tyrrell v. Hilton, 92 Md. 176 , furnish illustrations of the exercise of this power. Section 315A of the Code of Public Local Laws, Article 4, title “City of Baltimore,” as enacted by the Act of 1914, Chapter 107, provides: “If judgment be entered against any defendant for failure to, appear and plead, or failure to1 file a sufficient plea, affidavit or certificate of counsel, under the four preceding’ sections, the Court in which said judgment has been rendered may, upon motion filed by the defendant within thirty days after entry thereof, strike out the same and reinstate such case with leave to such defendant to, file pleas, affidavit and certificate of counsel, or amend his pleas, affidavit and certificate of counsel already filed, within not exceeding ten days thereafter, whenever the Court shall be of the opinion that the interests of justice will be promoted by striking out such judgment and so reinstating such case, .although sufficient grounds for striking out such judgment for fraud, deceit, irregularities of such other grounds as would have sufficed before the enactment of this section may not be present; provided, however, that the Court granting such order may require as a condition thereto, that the defendant give bond with approved security for the payment of any judgment finally recovered against him in such ease in such penalty as may be