Griffith, Turner & Co. v. Adams

Pearce, J., delivered the opinion of the Court. There are two appeals in this record taken from an order of the Circuit Court for Baltimore County, striking out a judgment obtained in that Court by the plaintiffs against the defendants on December 7th, 1896. The cause of action was a promissory note of the defendants for $169.98, dated September 6th, 1894, and payable to the plaintiffs three months after date. The suit was instituted October 16th, 1896, under ch. 631 of 1894, known as the Practice Act of Baltimore County.

A declaration, properly verified by affidavit as required by that Act, together with the promissory note constituting the cause of action was filed with the titling, and subpcena was issued ¹⁷² the same day returnable to the third Monday in October, 1896, which, under said Act, was the next return day for return of civil process. On that day, October 19th, both defendants were returned “ summoned,” and on the next day, the defendants failing to appear, the clerk entered their appearance as directed by the Act. Under sec. 18F, the plaintiff in any suit on contract, having filed a declaration with an affidavit of the true amount due him, and the writing or account upon which the defendant is indebted, is entitled to judgment to be entered by the Court or clerk on the first day of the term next succeeding the return day to which the defendant was summoned, though the defendant may have pleaded, unless such plea contains a good defense, and unless the defendant, or some one in his behalf, shall under oath or affirmation, state that every plea pleaded is true, and what amount, if any, of the plaintiffs claim is due, and what amount is disputed; and the Court is required to pass such rules as are necessary to carry out the purpose of the Act, provided that the Court may for good cause shown, by its order in writing passed anytime before judgment, extend the time for filing such pleas and affidavits—which extension shall until the expiration thereof suspend the plaintiff’s right to enter judgment. The Court passed the necessary rules, and Rule 4 provides that where the declaration is filed at the time of the institution of the suit, the rule day to plead thereto shall be the fifteenth day after ¿he return day to which defendant was summoned, and a rule was laid accordingly.

This rule expired on November 3rd, and on December 5th, thirty-two days after the expiration of the rule to plead, the defendants filed separate pleas. Michael Adams pleaded that he had been discharged in insolvency May 21st, 1895, and that the plaintiffs claim accrued before the petition in insolvency was filed. Margaret Adams pleaded the general issue pleas, but in neither case were these pleas supported by any affidavit. Rule 5 provides that it shall be the duty of the clerk to file any plea offered to be filed under sec. 18F, “ if sworn to,” and that all questions as to the sufficiency of such ple'as, shall be ¹⁷³ determined by the Court on demurrer, or motion in writing, upon notice given the attorney for the party filing the same, and that if the plea be held insufficient, the party filing the same shall have the right to amend on terms to be prescribed by the Court.

This rule further provides that the judgment authorized by this section shall be entered “ as m default of plea under the rule as in other cases.” The first day of the term next succeeding the rule day to which these defendants were summoned, was December 7th, 1896, and on that day, on the regular call of the docket, the docket entry shows “ Judgment for plaintiffs by default for want of sufficient pleas,” and judgment was extended on the same day. On October 12th 1901, separate motions were filed by the defendants to strike out this judgment. Margaret Adams reasons were ; 1st. That pleas were filed before entry of judgment. 2nd.

That judment was rendered not for want of plea, but for want of sufficient plea. 3rd. That neither she nor her attorney had any notice of the judgment, and 4th. Other reasons to be shown at the hearing. Michael Adams reasons were : 1st.

That he had been discharged in insolvency and had pleaded this defense before judgment was entered. 2nd. That the record showed judgment was entered by default for want of a sufficient plea, notwithstanding the plea of discharge in insolvency was filed before judgment was entered. And third and fourth, for the same reasons as the third and fourth alleged by Margaret Adams. On the same day, the Court struck out the judgment and ordered the defendants to plead within ten days, and they subsequently filed new pleas under leave of Court, on January 10th, 1902, nunc pro tunc, as of October 12th, 1901—support-ing the same by the necessary affidavit thereto.

It will thus be seen that the plaintiffs were in no respect in default in their pleading at the date of the entry of the judgment, but that the defendants were in default in two respects : 1st, in not attempting to plead until thirty-two days after the expiration of the rule, and 2nd, in not verifying their pleas by ¹⁷⁴ affidavit as required by the Act, without which they had no right to have them filed. The appellants contend that these pleas,' being without affidavit, were not such pleas as were required by the Act to defeat their right to enter judgment as in default of plea in other words that they were not pleas at all, but were nullities to which no legal effect could be given by their unauthorized filing by the clerk, and that the word “sufficient" in the docket entry of the judgment should be regarded as surplusage, thus making the judgment appear to be, what it