Huntington v. Emery

Irving, J., delivered the opinion of the Court. The question in this case is whether the Baltimore City Court erred in refusing to strike out a' judgment rendered therein on the 23rd of September, 1890. Various reasons were assigned in support of the motion, some of which involved the pleadings in the cause, and therefore it is necessary to state what the pleadings were. The suit was brought under the Act of 1886, chapter 184, known as the “Practice Act” or Rule-day Act for Balt-i ⁶⁹ more City.

The declaration, containing the common counts, and a count on two promissory notes, was sworn to as the Act requires. To it four pleas were interposed, and sworn to, viz., 1. Never indebted as alleged; 2. Never promised as. alleged; 3.

That the consideration was void; and 4th. Payment. Issue was joined on the first, second, and fourth pleas, and a demurrer was filed to the third plea, which the record says was sustained. The case having proceeded through trial to verdict, judgment on verdict was rendered.

One month thereafter, but at the same term, the motion to strike out the judgment was made and overruled; and from this action of the Court in refusing to strike out the judgment this ■appeal was taken. The reasons assigned are eight in number. The first, second and seventh of them claim the consideration to be void, because the same was for .gambling. This was set up. in the third plea.

The third reason avers surprise. The fourth relies on the failure to lay a rule to employ new counsel. The fifth avers payment. The eighth relies on alleged error in sustaining demurrer to his plea of bad consideration; and the eighth avers irregularity because there was no traverse of the plea of payment, but a simple- joinder of issue to that plea.

No fraud is alleged or claimed to have been practiced in the procurement of the judgment. This is not an appeal from the judgment, and no error ■of the Court which the appellant supposes was made in •sustaining the demurrer to his plea of invalid consideration can be considered or decided upon an appeal from a refusal to strike out a judgment, which involves only questions of fraud, surprise, or irregularity. But if we could consider the question of void consideration, in the ■exercise of qiccisi equitable jurisdiction, the plaintiff and defendant do not agree in the testimony about it, the defendant insisting that the notes were given in settlement ⁷⁰ of a partnership. The only evidence in support of the contention is the affidavit of the appellant, and is not admitted by the appellee; and this Court said in Foran vs. Johnson, 58 Md., 144 , that such proof was insufficient to disturb a judgment solemnly rendered by the Court.

If the fact be as alleged, the appellant has his remedy. He can proceed in equity against the judgment. Gough vs. Pratt, Adm’r, 9 Md., 526 ; Emerson vs. Townsend, 73 Md., 224 . Payment was pleaded, and issue was joined on it, and the jury rendered a verdict for plaintiff notwithstanding; and consequently this reason is no ground for setting-aside the judgment on this appeal.

But the appellant contends that there was no traverse of this plea, and issue only was joined on it, which is claimed to be such irregularity as requires the judgment to be stricken out. There were good counts, and a good issue on them, to-support the verdict and judgment; and although proper pleading required a traverse of the plea of payment, its omission is not sufficient ground for disturbing this judgment. In Cumberland and Pennsylvania Railroad Company vs. Slack, 45 Md., 178 , a like question was presented and decided on a direct appeal from a judgment. Several pleas were filed, and one of them required a traverse-instead of the issue joined: and the Court decided that, although a formal