Mailhouse v. Inloes

Goldsborough, J., delivered the opinion of this court. It appears from the record in this case, that the appellees instituted an action in the Superior court of Baltimore city, against the appellant, on the 6th day of October 1858, on an account for goods sold and delivered, and at the time of filing their declaration, also filed the account of said goods, with an affidavit, in accordance with the 9th section of the Act of 1858, ch. 323. The summons for the appellant, after two non ests., was returned, summoned to the 2nd Monday of December 1858, one of the rule-days of the court. The appellant neglected to appear, and at the instance of the appellees, and in pursuance of the 6th section of the above Act, a judgment by default was entered, aud the court, at the same time, and as part of the judgment by default, assessed the damages and affixed the plaintiffs costs.

The following order subsequently appears in the record:— ³³² “Inloes vs. Mailhouse,—Superior Court. Mr. Sangston: Enter judgment for twelve hundred and forty-four dollars and thirty-ibree cents, ($1244.33,) in the above case, with interest from (he 20th of April 1858 with costs. Z. Collins Lee.” Endorsed, “Piled 21st of February 1859.” On the 16th day of June 1859, the appellees sued out a writ of fieri facias on this judgment, and while the writ was in the hands of the sheriff, the appellant moved “to strike out the judgment by default, for fraud, deceit., surprize and irregularity in obtaining the same,” and assigned the reasons mentioned in the record. On the 15th day of July 1859, upon the hearing of this motion, the court overruled it, and this appeal was taken.

We cannot sanction the ruling of the Superior court. The proceedings are irregular in two important particulars. While it was the undoubted right of the appellees under the 6th section of the Act of 1858, ch. 323, to obtain a judgment by default, at the term or on the rule-day to which the appellant was returned summoned and failed to appear, yet., as this judgment was extended at the same term by the assessment of damages and costs, such assessment .was in derogation of the rights of the appellant. The 6th section provides, that the judgment by default shall be stricken out on the application of the defendant being entered to the action, at any time before the first day of the term, or rule-day next thereafter.

It is only on the defendant’s failure to appear within the time limited, that the plaintiff if entitled to a final judgment. If, however, the