Deved v. Carrington

Schmucker, J., delivered the opinion of the Court. The appellee instituted this suit in the Superior Court of Baltimore City against the appellant and Thomas S. Lee and ³⁷⁷ James Bartol as endorsers on two overdue promissory notes of the Diven Deved Foundry Company for $2,$úo each. The action was brought under the Rule Day Act in force in Baltimore City and the original notes together with an affidavit by the plaintiff in the form prescribed by the Act were duly filed with the declaration. The writ was returnable to the rule day which fell on May nth, 1903.

The appellant alone was returned summoned but on May 20th, 1903, Richard H. Pleasants, Esq., a member of the Baltimore Bar entered his appearance for all three of the defendants and filed joint pleas on their behalf of nil debet and noti asstmipsit. To these pleas was annexed an affidavit by James Bartol, one of the defendants, as follows : “State of Maryland, City of Baltimore, to wit: “On this 19th day of May, in the year nineteen hundred and three, before me, the subscriber, a notary public of the State of Maryland, in and for Baltimore City, personally appeared James Bartol (one of) the above-named defendants, and made oath in due form of law, that every plea so pleaded by the defendants is true, and they admit none of the plaintiff’s claim to be due and owing, and all is disputed ; and further, that the affiant verily believes the defendants will be able at the trial of the cause to produce sufficient evidence to support the said pleas, and that he is advised by counsel to file the said pleas.” Appended to the pleas and affidavit was a certificate signed by Mr. Pleasants that he “advised the defendants making the above oath and filing said pleas to do the same.” On May 27th, 1903, the appellee as plaintiff filed an ex parte motion in writing in the case for a judgment by default against the appellant, who was one of the three defendants, for want of a plea or pleas verified by a proper affidavit under the Act. The motion was granted and judgment by default was entered against the appellant, and on the following day it was extended by the Court for the full amount of the two notes and interest. From that judgment the present appeal was taken.

The affidavit already mentioned had in fact been filed with the pleas but the learned Judge below treated it as not ³⁷⁸ complying with the requirements of the Act because it was made by only one of the defendants and did not in his opinion show on its face that it was made on behalf of all of them, and he therefore permitted the judgment to go against the appellant. The question of the sufficiency of the affidavit is thus directly presented for our determination by the appeal. Many questions of practice arising under the so called Rule Day Act of Baltimore City have been passed upon by us under previous appeals. The original Act was chapter 323 of the Laws of 1858, and its purpose was to so modify the then existing practice in certain classes of cases in the Courts of Baltimore City as to enable plaintiffs to obtain speedy judgments upon just claims to which no substantial defense was interposed.

The system of practice which grew up under the Act has from time to time been modified by subsequent legislation passed with a view to remedy defects revealed by experience in its operation and to render the evasion of its provisions more difficult. An essential feature of the system has always been to permit the plaintiff, if he filed with his declaration a sworn statement of the exact amount of his claim and also his original cause of action, if in writing, to procure an early judgment in his favor unless the defendant promptly file“d pleas constituting a good defense verified by an affidavit made by himself or some one in his behalf. The Act as now in force, so far as it relates to the present controversy is found in sections 312 and 313 of the Baltimore City Charter enacted by chapter 123 of the Laws of 1808. Section 312 provides that a plaintiff who has complied with the