Knickerbocker Life Insurance v. Hoeske

Bartol, C. J., delivered the opinion of the Court. The amount claimed in this suit by the appellee, is a liquidated sum, fixed by the contract, upon which the action was brought. The case, therefore, is clearly within the provisions of the Act of 1864, ch. 6. Upon a claim of this nature, there can be no difficulty in stating the account and verifying the same by affidavit.

It is not like the case of Smithson & Owens vs. The Telegraph Co., 29 Md., 162 , in which it was held the claim was, in its nature, one for unliquidated damages not fixed by the contract, nor did the contract furnish any certain standard by which the amount of the plaintiff’s claim could be certainly ascertained. In this case, if thé plaintiff has a right of action, the sum she is entitled to recover is fixed or may be ascertained by the terms of the contract. The contingencies upon which her right of action depends, have no relation to the question of the nature and amount of indebtedness, if any exists; that is fixed and definite, and is, in no sense, in the nature of unliquidated damages. ³²³ At the time the suit was brought, there was filed with the declaration an account of the defendant’s indebtedness, verified by affidavit, in accordance with the eighth section of the Act of 1864, and the policy of insurance was filed therewith as a voucher, and referred to in the account. The policy, as copied in the record, does not appear to be signed by the president and secretary of the company, as required by the second condition therein; but this defect or omission has been cured by the agreement of counsel, filed in this Court, whereby it is admitted that both the original policy and the receipt for-premium on its renewal were signed by the president and secretary.

It was, therefore, a sufficient voucher of the contract under the Act of 3 864. It appears by the record that the summons was issued on the 9th day of December, 3868, and made returnable on the second Monday of the same month, being the first return day thereafter, and was duly served. The defendant appeared by attorney on the return day, and was put under rule plea by the second Monday, being the 11th day of January, 1869, that being the first day of the ensuing term of the Court." On the 7th day of January, 1869, the defendant filed three pleas to the merits, with what purported to be an affidavit of the defendant appended thereto, a copy of which was served on the plaintiff’s attorney the same day, and a rule replication within fifteen days thereafter, was laid on the plaintiff. Whereupon a joinder of issue upon the pleas was entered by the clerk.

On the second Monday of January, 1869, the plaintiff’s, attorney gave an order to the clerk to strike out the joinder of issue, which was done, aud filed a motion in writing asking-the Court to enter judgment against the defendant, notwithstanding the pleas; for the reason that there was no sufficient affidavit to the picas under the 7th section of the Act of 1864. The defendant then filed a petition asking leave to “ file an additional or supplemental plea with an additional or supplemental affidavit.” ³²⁴ The cause was heard on the motion of the plaintiff, and on the 27th day of February, 1869, judgment by default was entered against the defendant for want-of sufficient affidavit to its pleas. The Court then proceeded, on the motion of the plaintiff, to extend the judgment, and on the same day entered the judgment “for the sum of $2,000, damages assessed by the Court, with interest from date till paid, and costs of suit.” The defendant’s motion for a trial by jury to assess the damages having been overruled, the defendant excepted: 1st. To the refusal of the Court to allow amended pleas and affidavit'to be filed.- 2d.

To the entering of the judgment by default. 3d. To the extension of the-judgment by the Court, and its refusal to refer the question of damages to a jury. 1st. As to the motion to file an additional or supplemental plea and affidavit. In our judgment this application is not to be considered as an ordinary motion to amend, and therefore the question whether any appeal lies from the action of the "inferior Court, upon a mere motion to amend, does not necessarily arise in this case, was not noticed in the argument, and no opinion is expressed thereon.

The application made by - the defendant was substantially a petition for leave to .plead to the action, as if no pleas had previously been filed. For having put in pleas without any sufficient affidavit, they were in contemplation of the Act of 1864, not any valid or effectual pleas for the purpose of preventing a judgment by default, for the want of