Horner v. O'Laughlin

Miller, J., delivered the opinion of the court. This appeal is from a judgment of the Court of Common Pleas extending a previous judgment by default for want of a plea. There was no motion in arrest or to strike out the judgment for fraud or irregularity, nor was there any exception taken certifying to this court the facts upon which the *court below acted. The suit was not instituted under the provisions of the 5th, 6th, 7th and 8th sections of the Act of 1864, ch. 6, but in common form invoking the exercise of the ordinary powers of the court 'in the usual course of its procedure.

Upon appeal from the judgment of a court of record proceeding according to the course óf the common law, this court cannot reverse the judgment unless it affirmatively appears on the face of the record the court had no jurisdiction over the cause or the parties, or that the judgment was such as the law does not authorize to be pronounced upon the verdict, as was the case in Watkins v. State, 14 Md. 424 . Any error or irregularity in the proceedings which does not reach the jurisdiction of the court, or affect, in the sense indicated, the legal validity of the judgment, cannot be reviewed by this ⁴⁷¹ court either upon appeal or writ of error, because the appellate court in this State is, and has long been, expressly inhibited by law from deciding any point or -question which does not appear by the record to have been tried and decided by the court below. Act of 1825, ch. 117; Code, Art. 5, sec. 12; and Act of 1861-2, ch. 154. Such has been the uniform construction of this law, the only exceptions to the rule being demurrers and motions in arrest of judgment.

We refer to Morgan v. Briscoe, 4 Md. 272 ; Bridendolph v. Zellers, 5 Md. 58 ; and Hallowell v. Miller, 17 Md. 305 , as illustrating the series of decisions upon this subject. The summons was served upon the defendant by the Sheriff of Baltimore City, and he was therefore prima facie within the jurisdiction of the Court of Common Pleas. If he designed to avail himself of the defense that he was a resident of Carroll County and not of Baltimore City, he should, upon the return of the writ, have moved for a non pros, or presented the objection in some other mode than by the mere filing of the affidavit of a third party, as to his non-residence. When, therefore, the plaintiff’s motion that this affidavit be stricken out “ under the rule ” of the court, was granted, we must *assume, in the absence of the rule on the subject, that the court acted in conformity to its rules in that respect lawfully adopted.

The chief objection relied on in argument is that it was error on the part of the court to lay a rule to plead, and enter a judgment by default, where there was no appearance for the defendant, and English authorities have been cited to the effect that a judgment for want of a plea, signed without any appearance being entered, is a nullity. Whether a judgment so entered in this State, after the party has been returned summoned, could be regarded as a nullity, since the substitution of a summons for the writ of capias ad respondendum consequent upon the abolition of imprisonment for debt, is matter of grave doubt, but it is