Montgomery v. Murphy

Goldsbobougii, J., delivered the opinion of this Court: The appeal in this case was taken from the action of the Superior Court of Baltimore city, overruling the motion of the appellant to strike out a judgment entered against him in that Court, on the 15th day of September 1855. The motion to strike out the judgment was filed on the 9th day of January 1857, and the appellant assigned as the reasons for the motion, that the judgment was entered by mislalce, and was not the proper judgment to be entered. "We find from the record that the appellee instituted suit against the appellant to recover $3,000 for work and labor, and for goods sold and delivered; and that at May term ,1855, the appellant appeared by Messrs. McLean and Williams as his attorneys, pleaded the general issue and the statute of limitations, and also demanded a bill of particulars.

The cause was continued until the September term following; and though service of the rule, replication and notice of demand for a bill of particulars was admitted by the attorney for the appellee, no replication was filed nor bill of particulars furnished, but at this term a judgment by confession for the plaintiff was entered and extended. It appears from the affidavit of F. A. Prevost, that he was a deputy clerk in the clerk’s office of the Superior Court, in the year 1855, at the same time that an entry of judgment was made by Levin Handy, as Court clerk in ⁵⁷⁹ this case; that it was so made without stating on the docket whether it was for the plaintiff or the defendant; that subsequently, after the adjournment of the Court, and in the clerk’s office, when deponent was about transcribing said judgment in said office on the record docket, he required an explanation of said entry, when he was instructed by Handy to make the entries which are now upon said docket; that the only entry upon said docket, until it came into the clerk’s office, was the said word “judgment,” and that the other words were not written there until they were so written by this deponent in the office, and not in Court, and were so written by the direction of said Handy, as aforesaid. Therefore the only entry made by the Court clerk, in legal contemplation, under the eye of the Court, and by its authority, was the word “judgment.” A judgment by confession is an affirmative act, consented to by the defendant in person, or by his attorneys, with the leave of the Court. In the affidavits of the defendant and of his attorneys, they utterly deny any such confession; and if any judgment was ordered to be entered, it was more consonant with the state of the pleadings in the cause that it should have been a judgment by default for want of replication and the failure to furnish a bill of particulars.

Though this Court has said, in the case of Weighorst vs. The State, 7 Md. Rep., 450 , “it has always been the habit of clerks to take minutes and docket entries of the Court’s proceedings, and subsequently to enter them at length in technical language, according to established forms,” we cannot sanction the extension of this habit to a case in which the clerk has made the single entry of “judgment,” and then, out of Court, fixing the liability of plaintiff or defendant from mere recollection as to how the judgment should-be entered at length. If the “judgment” had indicated, when placed on the minutes of the Court, for or ⁵⁸⁰ against whom it should have been entered, the