Gildea v. Lund

Burke, J., delivered the opinion of the Oourt. • This is an appeal from an order of the Superior Court of Baltimore City overru'ing a motion made by the defendant to strike out the plaintiff’s order dismissing- the suit and to reinstate the case upon the docket for trial. The question raised is a new one in this State, although it has been considered and passed upon in other jurisdictions. The decisions upon the question are not in harmony. But in view of the long established practice of this State, and the settled principle of the common law relating to the subject, we have no difficulty in affirming, the action of the lower Oourt.

The record shows that on the 7th day of E'ebruary, 1916, Tetzen Lund, a resident of Denmark, brought the suit in the Superior Oourt of Baltimore City against Harry O. Jones, trading as H. O. Jones & Company. The action was in assumpsit. The declaration contained four counts,—three common counts, and one special count, which set out a breach of contract made by the defendant to deliver to the plaintiff about eighty thousand bushels of corn. The defendant filed the general issue pleas and two pleas of set-off in which it was claimed that the plaintiff was indebted to the defendant in an amount greater than the plaintiff’s alleged claim.

With the first plea of set off the defendant filed an account showing the items claimed to be due him by the plaintiff. A demand for a bill of particulars of the claim of set-off was filed by the plaintiff, and in response to which the defendant said that the particulars filed with the plea of set-off constituted the defendant’s claim. The plaintiff excepted to the bill of particulars, and the Oourt sustained the exceptions. The defendant then filed the second or additional plea of set-off to which the pLUutiff demurred, but the demurrer was not passed ³⁸⁷ upon.

Upon the filing of the additional plea and pending the demurrer, John H. Gildea, Jr., Trustee in bankruptcy of Harry C. Jones, the original defendant, trading as H. O. Jones & Company, was by an order of Court dated October 10, 1916, substituted as a party defendant. On October 18, 1916, the plaintiff by his attorney dismissed the suit by a written order filed with the clerk. On November 21, 1916, John H. Gildea, Jr., trustee, filed a petition to strike out the order of dismissal. The grounds upon which the Court was asked to strike out the order are set out in the petition as follows : “That as will appear from the pleadings in the above-entitled ease, the defendant has filed pleas of set-off under which he claims that there is due and owing to him a larger sum than is demanded by the plaintiff herein, and for which amount the defendant has asked the judgment of this Honorable Court. “That under an order filed with the clerk of this Court on the eighteenth day of October, 1916, it appears that the above case was entered dismissed on the docket of this Court. “That your petitioner believes and therefore avers that said dismissal without the order or judgment of this Court thereon, is in prejudice of his rights as a party defendant, which are set up and claimed under the plea of set-off aforesaid, and that said plaintiff should not be permitted to dismiss the above-entitled cause for the reasons heretofore assigned, and also by virtue of the fact that he, is an alien, and citizen and subject of the Kingdom of Denmark, and by his declaration heretofore filed in the above-entitled case, he has submitted himself to the jurisdiction of this Court, and to any judgment which may be obtainable against him by the defendant under his plea of set-off aforesaid. “Wherefore your petitioner prays this Court to pass an order vacating and annulling the order of dismissal above referred to and reinstating this case on the dockets of this Court, for such further procedure as shall be necessary and proper therein.” ³⁸⁸ The