Hutton v. Marx

Bryan, J., delivered the opinion of the Court. Marx and others sued Hutton on an open account, which appeared to have been contracted in the years 1816 and 1811. The defendant pleaded never indebted; never promised and .limitations. An affidavit was made to the plea of limitations, but not to the other two pleas.

The jilaintiffs joined issue on the first two pleas, and replied to the plea of limitations. By leave of the Court, the plaintiffs withdrew the joinder of issue and the replication; and moved for a judgment by default for want of a sufficient affidavit of defence under the Act of 1886, chapter 184. The Court entered ²⁵⁵ judgment by default, and an inquisition of damages was taken at the bar. It was objected to the affidavit that it did not comply with the requirement that it should “ state the amount of the plaintiffs’ demand, if anything, admitted to be due or owing, and the amount disputed.” The plea of limitations admits the whole of the plaintiff's’ claim to be due, but sets up a statutory bar to the recovery of it.

The affidavit that the plea is true would then according to its verbal import satisfy the terms of the Statute. But we suppose the meaning of the Act to be, that the affidavit should state the amount of the plaintiffs’ demand to which there is a defence; and the amount to which there is no defence. How, if within three years before the bringing of the suit, the defendant had admitted a single item of the plaintiff’s’ account to be due, the plea of limitations would have been defeated as to that item, while it would have been a good bar to alL the other items in the account. Beltzhoover vs. Yewell, 11 Gill & Johnson, 216; Sprogle vs. Allen, 38 Md., 331 .

We think, therefore, on the authority of Adler vs. Crook, et al., 68, Md., 494, that we are obliged to hold this affidavit defective. But the objection to it must be made at the proper time, and in the appropriate manner. The Act requires that a motion in writing should be made for a judgment. In this case, the plaintiffs joined issue on two pleas, and filed replications to the third.

Prom Prom these steps, it is a conclusion of law that the plaintiffs elected to go to trial oil the facts averred in the pleas ; there would otherwise be no significance in thus pleading to them. And if they elected to go to trial on the pleas, they necessarily waived their right to move for judgment, notwithstanding their existence; as these two proceedings are inconsistent with each other. ²⁵⁶ It is very often that a party loses a right by not exercising it at the proper time. If he does not object to incompetent testimony at the time it is offered, he cannot do so afterwards. If he