Loney v. Bailey

Alvey, J., delivered the opinion of the Court. This was an action of assumpsit, instituted in the Superior Court of Baltimore City, on the 6th of April, 1872, and the proceedings were conducted under the practice Act of 1864, chapter 6. The action was against a partnership firm, composed of five members, namely, Loney, Neale, Price, Gunn and Thomas, all of whom were .made defendants in the original action. The first summons against all the defendants, was returnable to the April return day, and was served on Loney, Price and Thomas, and returned non sunt as to Neale and Gunn.

Thomas appeared on the return day by attorney. The summons was renewed against Neale and Gunn, and made returnable to the next May Term, 1872, and which was served on Neale, and returned non est as to Gunn. A renewed summons was issued against Gunn, returnable to the next June return day, and which was served; and thus all the original defendants were served with process. On the 9th of May, 1872, judgment by default, for want of appearance, was rendered against Loney and Price; and on the 3rd of June, 1872, a similar judgment was rendered against Neale; and on the 8th of June, 1872, judgment by default, for want of plea and affidavit of. defence, was rendered against Thomas ; and lastly, on the 1st of July, 1872, judgment by default, for want of appearance, ivas entered against Gunn.

Thus interlocutory judgments were entered against all the defendants, and these judgments were all entered during the May ¹⁵ term, 1872, under the provisions of the Act of 1864, chapter 6. The four defendants against whom judgments by default for want of appearance had been entered, the other defendant having previously appeared, appeared by attorney on the 12th of August, 1872, and thereupon prayed for a jury trial in taking the inquisition. An inquisition was taken by jury against all the defendants, on the 23rd day of September, 1873, and upon which a general judgment was entered against them all, as i! there had been no severance in the action by reason of the non-service of the original summons Before the inquisition was taken, but after the expiration of the term at which the judgments by default were entered, and after tbe lapse of more than a year from the date of their rendition, the defendants made motions to strike out these judgments by default, and urged several exceptions to the proceedings, all of a technical and dilatory character, disclosing no meritorious defence, and not pretending that the judgments were procured by fraud, surprise or mistake; and which motions and exceptions were all overruled by the Court below, — rulings in which we entirely concur. In the case of Green vs. Hamilton, 16 Md., 318 , this Court held that a judgment by default, regularly entered, is as binding as any other, as far as respects the power and jurisdiction of the Court in declaring that the plaintiff' is entitled to recover, though the amount of recovery may remain to he ascertained by a jury.

So far then as the question of the right of the plaintiff to recover is concerned, the judgment by default is decisive of that, leaving the amount to be subsequently ascertained; and to the extent that such judgment is decisive, it stands upon the same looting of all other final judgments. Such being the established principle, the motions to strike out the judgments in this case came too late, not ¹⁶ being filed until the 23rd of September, 1873, more than a year after the expiration of the term at which the judgments were entered. Until the lapse of the term, the judgments remained subject to the control of the Court; Rutherford vs. Pope, 15 Md., 579 ; but after the expiration of the term at which they were entered, unless it were shewn that they were obtained by fraud, surprise or mistake, or there be some statutory authority for so doing, the Court could not rightfully deprive the plaintiffs of the benefit of such judgments. Sherwood vs. Mohler, 14 Md., 564 ; The Bank U. S. vs. Moss, 6 How., 31 .

To hold otherwise would go far to destroy all stability of the judgments of the Courts. After the inquisition was taken, the defendants moved in arrest of judgment thereon, and assigned several grounds for the motion. 1. The first ground alleged is, that it does not appear that any claim was filed with the declaration, as required by the Act of 1864, ch. 6. In regard to this, it is sufficient to say, that it does appear from the record that a claim was filed in the cause, with the declaration.

Whether annexed to the declaration, or endorsed by the clerk as filed, the record does not show, but the law ■requires nothing of the sort to be done. Besides, this is a mere formal matter not reached by motion in arrest. Code, Art. 75, secs. 8 and 9. 2. The second ground assigned for the motion is, that the affidavit to the plaintiffs' claim is insufficient, because it states that the. party making it affirmed, without stating that he was conscientiously scrupulous as to taking an oath.

But, without deciding whether such an objection as this can properly be raised on a motion in arrest of judgment, and especially after judgment by default, we think the affidavit sufficient. It is, true, an affirmation can only be made by a person having conscientious scruples of taking an oath; Code, Art. 1, sec. 9; and, in the ¹⁷ absence of any fact to the contrary, we must presume that the officer before whom the affidavit was made, became satisfied that the party had such scruples as to entitle him to affirm, instead of taking an oath in the usual form. It was the duty of the officer to satisfy himself in reference to the fact, and we must suppose he discharged this duty, before taking the affirmation and giving the certificate. It is not the practice, nor is it necessary, to state in. the certificate the reason for the party’s affirming, instead of taking the oath. 8.

The third, fourth and fifth grounds assigned, amount to one and the same thing, and that is, that the defendants were not served with copies of the declaration, as required by the rules and practice of the Court. But, whatever may have been the fact in regard to this matter, it can constitute no ground for arresting the judgment. It is a matter extrinsic the record, and it is only in regard to matter or defects appearing on the face of the record, that a motion in arrest can be made. 4. The remaining grounds assigned in support of the motion, assert the invalidity of all the judgments by default; or if the first entered be not invalid, that all subsequently entered are so; and that even if such judgments be treated as valid, there should have been separate inquisitions taken on each judgment by default.

Before the Act of 1839, chapter, 14, now embodied in the Code, Art. 49, sec. 10, in an action against a partnership firm on a partnership 'contract not under seal, all those who were partners at the time of the contract, were required to be joined as defendants, the contract being joint; and the omission to join all the partners as defendants could be taken advantage of by plea in abatement, or if it expressly appeared on the face of the declaration, or other pleading of the plaintiff, that the party omitted was still living, as well as that he jointly contracted, the non-joinder could be taken advantage of by demurrer or ¹⁸ motion in arrest of judgment. 1 Chitty Pl., 46; Kent vs. Holliday, 17 Md., 387 . This is still the well settled law, unaffected by the statute referred to. But there was another consequence attending the omission of a partner or joint debtor in an action upon the joint contract, and that was, that the judgment recovered against one or more of such joint debtors merged and extinguished the debt as against those not joined in the action, and if they were subsequently sued on the original joint contract, they could plead in bar the former judgment recovered against their co.-contractors. Moale vs. Hollins, 11 Gill & John., 11; Robertson vs. Smith, 18 John., 459 ; King vs. Hoare, 13 M. & W., 494.

It was to prevent'this latter consequence that the statute, to which we have referred, was .passed. That statute declares that a judgment rendered against one or more partners, or one or more persons jointly liable on any contract, less than the whole number jointly bound, shall not work an extinguishment or merger of the cause of action, as respects the liability of the partners or persons not hound by such judgment, but that they shall remain liable to be sued as if their original responsibility had been joint and several. It is. plain therefore that the plaintiffs in this action were required to join all the partners as defendants in the first process sued out, all being within the jurisdiction of the Court, as the omission to do so would have been at the risk of having the suit defeated by plea- in abatement for the