De Atley v. Senior

Irving. J., delivered the opinion of the Court. The appeal in this case is from the refusal of the Superior Court of Baltimore City, to strike out a judgment ⁴⁸⁰ rendered by that Court in favor of the appellees against the appellant. The judgment was extended for $166.68 and costs, on the 12th day of January, 1880, in pursuance of an alleged judgment, by default on the 5th of ■January, 1880.

On the 20th of January, 1880, during the same term at which judgment by default, and on extension, appear to have been rendered, the motion to strike ■out was made, and on the 2nd day of July, following, the motion was overruled. The petition alleges surprise at the entry of the judgment; and asks that it be stricken out for the following .reasons, viz. 1st. Because the claim for which it was rendered has been paid. 2nd. Because the judgment by default, and the extension thereof were irregularly entered, — and 3rd, for other reasons to be assigned at the hearing.

It will not be necessary for us to consider or pass upon ■any of the reasons assigned, except the one alleging irregularity in the entry of the judgment by default and the final judgment on extension; for according to our view of the case, there was such irregularity in the entry of the .judgment by default and on extension as ought to have induced the Court, on the motion made, to strike it out, that trial might be had on the merits. Upon this motion alleging irregularity, the whole question of jurisdiction and whether the proper steps necessary to justify the entry of judgment by the Court, is open before us. We cannot sustain the contention of the appellant’s ■counsel that no judgment by default was rendered in the cause. We cannot so construe the record as it comes certified to us.

Notwithstanding some apparent transposition of the entries, so that the entry of judgment by ■default does not appear to have followed immediately upon the motion for it, and to have preceded the continuance of the cause; yet it is certified as having been entered ⁴⁸¹ on the day the motion was made, and we must hold that it was rendered and entered on that day and in proper order of time, immediately upon the motion for it. If however this judgment by default was improvidently entered without the necessary preliminary proceedings to entitle the plaintiffs to it, the judgment on extension was also irregular and both ought to have been stricken out and defence allowed to be made. Without considering any other ground of error suggested, there is one serious and fatal objection patent of record. It involves the construction of the Act of 1864, ch. 6, in respect to a question not heretofore raised or decided in this Court.

The seventh section of that Act provides: “In any action brought for any of the causes mentioned in the last preceding section, the plaintiff, if he make affidavit or affirmation, as hereinafter stated, shall be entitled to judgment on the first day of the term of the Court, in which said action is pending, or at the return day next succeeding the appearance of the defendant, which ever shall first happen or occur, although the defendant may have pleaded; unless such plea contains a good defence, and unless the defendant or some one in his behalf shall make oath or affirmation that said plea is true, and that he verily believes, that he will be able at the trial of the cause to produce evidence in support of said plea.” By the eighth section of the Act this affidavit of the plaintiff must be made at the time of bringing the suit; and the contention of the appellant’s counsel is, that the express language of these seventh and eighth sections requires, this affidavit is to be made by the plaintiff, and that it can be made by no one else. We can not doubt that this is the proper construction of the Act, and that the want of such affidavit by the plaintiffs was a fatal objection to the proceeding; and that for the want of it, the plaintiffs could not justifiably ask for judgment by default as was done, and the Court ⁴⁸² could not properly grant the motion and enter the judgment. The affidavit filed with the declaration is not the affidavit of the plaintiffs, hut of a