Picking v. Local Loan Co.

Henderson, J., delivered the opinion of the Court. This is an appeal from a judgment of the Circuit Court for Baltimore County, sitting as a jury, entered on February 24, 1945, for the sum of $408 with interest from August 22, 1942, and costs, and a counsel fee of $50 allowed to plaintiff’s counsel. The declaration was filed ²⁵⁶ on August 22, 1942, purportedly under the Act of 1886, Chapter 184. It contained the common counts (1) for goods bargained and sold, (2) for work done and materials provided, (3) for money lent, and a fourth count “For that the plaintiff recovered a judgment per the exemplified and certified transcript of judgment No. 4526785 which is attached herewith and made part hereof for the sum of $400.00 and costs of $8.00 -against the defendant * * * rendered on the 3d day of August, 1942, by the Municipal Court of Chicago, in the City of .

Chicago, County of Cook, State of Illinois, court of record whose official acts are entitled to full faith and credit in this State, no part thereof having been paid or satisfied.” The plaintiff’s claim was for $700. The notice to plead warned the defendant to plead “in accordance with the Act of 1886, Chapter 184, and amendments thereto.” There was an affidavit annexed dated August 20, 1942, taken before a notary public of Illinois, by “J. Murphy, Secretary of the plaintiff corporation,” who swore that $408 was due and owing on the said judgment, and that he was the agent of the plaintiff, duly authorized to make the affidavit and with personal knowledge of the facts. The annexed transcript of judgment showed that on August 3, 1942, a “contract confession” case was instituted and filed by the plaintiff, in the Municipal Court of Chicago. Proceedings were had thereon before the Hon.

Eugene Holland, one of the Judges of the Municipal Court, as follows: “Now comes the Plaintiff in this cause; also comes the Defendant who by virtue of defendant’s warrant of attorney files herein a cognovit confessing the action of the plaintiff against the defendant and that the plaintiff has sustained damages herein against the defendant in the sum as set forth in said cognovit. Whereupon the plaintiff moves the court final judgment herein. It is therefore considered by the Court that the plaintiff have and recover of and from the defendant Ida Hyman the damages of the plaintiff amount ²⁵⁷ ing to the sum of Four hundred and no/100 dollars ($400.00) in form as aforesaid confessed, together with costs by the plaintiff as herein expended, and that execution issue therefor.” Joseph L. Gill, clerk of the Municipal Court of Chicago and keeper of the records thereof, certified under the seal of the Court, “the above and foregoing to be a true, perfect and complete copy of certain proceedings made and entered of record in said court in a certain cause lately pending in said court, between Local Loan Co., a corporation plaintiff and Ida Hyman defendant.” Another certificate by Edward S. Scheffler, the Chief Justice of the Municipal Court, declared that Joseph L. Gill was the Clerk of said Court, and still another certificate by Joseph L. Gill declared that Edward S. Scheffler was the Chief Justice of said Court. Upon being summoned, the defendant filed a demand for the particulars of the claim under the common counts, and as to the fourth count, demanded copies of the alleged “confession contract” and “cognovit,” and statement of evidence, if any, on which the judgment was based.

On exceptions to the demand for particulars, the Court sustained the demand as to the first three counts, overruled it as to the fourth count. Thereupon the plaintiff filed a bill of particulars stating merely that the particulars of the first three counts were the samé as under the fourth count. The defendant then filed pleas, as follows: (1) Nul tiel record, (2) that the judgment was invalid for lack of jurisdiction in the Chicago Municipal Court, (3) that the transcript of judgment was incomplete and insufficient in that it did not contain a copy of the contract confession and warrant of attorney, or a copy of the cognovit, (4) that the defendant was not a resident of Illinois and did not own property therein, (5) that she had no notice of the proceeding in the Chicago Municipal Court, and did not authorize anyone to appear for her therein, (6) that the defendant executed a promissory note secured by a chattel mortgage of household furnishings over nine years ago, and that the furnishings were ²⁵⁸ sold and the proceeds accepted by the plaintiff in full satisfaction of said note and chattel mortgage. No affidavit accompanied these pleas.

The plaintiff filed a replication to the first plea and demurred to the others. Upon hearing, the demurrers were overruled as to each plea. The plaintiff then filed replications to the defendant’s second, third and fifth pleas and demanded particulars of the fourth and sixth pleas. The defendant demurred to the plaintiff’s replication to her second, third and fifth pleas, and furnished particulars of her fourth and sixth pleas.

The plaintiff excepted to the particulars furnished as to the sixth plea. Upon hearing, the defendant’s demurrers were overruled and the plaintiff’s exception was likewise overruled. The plaintiff filed a replication to the defendant’s sixth plea. A demurrer to this replication was overruled, and the parties being at issue, the case was set for trial on February 20, 1945.

On February 16, 1945, the defendant served notice on the plaintiff that she would ask the trial court to take judicial notice of certain laws of the State of Illinois, relating to small loan companies. The plaintiff offered in evidence, over objection, the transcript of judgment attached to the declaration; no further evidence was offered. The defendant then filed a written motion for a directed verdict, on the ground of legal insufficiency of evidence, which the court overruled. She then took the stand, and offered to read in evidence the statutes of Illinois which she had quoted in her notice.

This was admitted, subject to exception. She testified that about nine years ago she signed a note payable to the plaintiff although she didn’t know the exact amount, secured by a mortgage on furniture and a wage assignment. She went to the plaintiff and was informed that if she sold the furniture and paid them the proceeds “they would take that in satisfaction of the debt.” She sold the furniture, gave them all of the money for it, and “each time I gave them money for the furniture, they gave me a receipt in the amount.” She pro ²⁵⁹ duced one receipt for $33 dated July 6, 1934, reading “part payment received from part sale of furniture.” The receipt did not show how the payment was applied, or the balance due. The witness stated that the plaintiff promised to return the note to her, but did not do so.

The last payment was in August, 1934. On cross-examination, the witness admitted that she wrote a letter to the plaintiff, dated September 19, 1934, in which she said: “Not hiding away from you, but didn’t have money to offer you * * *. I must pay every one of my creditors. You come first.

I don’t owe anyone else except the final gas and electric bill.” In explanation, the witness said: “After this furniture was sold and brought less than $100.00, they said they were dissatisfied with taking that amount. I didn’t know my legal rights then, and I told them if ever I made a lot of money, then I would pay them.” She further said: “The furniture must have brought about $97.00, and the note was $300.00.” The defendant offered no further testimony, but renewed her motion for a directed verdict on the ground of the legal insufficiency of the evidence. This was overruled, and the court found a verdict for the plaintiff. The court said: “She admits herself that she still owes a very substantial portion of this money and she was under the impression that by some arrangement for the sale of her furniture, she was to satisfy this obligation.

I have no testimony that convinces the court that any such arrangement was ever made.” Defendant then filed a motion in arrest of judgment, which was overruled, and then a motion to strike out the judgment, which was also overruled. Appeal to this Court followed. The declaration purported to be brought under the provisions of the Speedy Judgment Act, but the reference to the Act of 1886, Chapter 184, and amendments thereto (P. L. Laws, 1930, Art. 4, Secs. 312-315B), was to the Baltimore City Act, rather than the Baltimore County Act (P. L. Laws, 1930, Art. 3, Secs. 84-91). ²⁶⁰ Whether this reference to an Act not applicable in Baltimore County would preclude the plaintiff from reliance upon the provisions of the Baltimore County Act, is a question we :§eed not consider in this case. We also pass the questions raised as to the sufficiency of the affidavit, since the case is not within the Act for other reasons.

The transcript of judgment was attached to and made a part of the fourth count, and the affidavit related solely to the judgment. The first three counts were not supported by the affidavit. Thus, while these three counts were good at common law, they were not good under the Act, and the trial court was clearly right in sustaining the defendant’s demand for particulars. The plaintiff supplied particulars to the effect that the particulars of the first three counts were the same as those filed in connection with the fourth count.

This took the case out of the Act. Mueller v. Michaels, 101 Md. 188, 194 , 60 A. 485 . The defendant then filed pleas, not under affidavit, and unsupported by a certificate of counsel, and the plaintiff replied thereto. In so doing, the plaintiff again waived any claim in reliance upon the Act.

Smith v. Women’s Medical College, 110 Md. 441, 444, 72 A. 1107 ; Laubheimer v. Naill, 88 Md. 174, 179 , 40 A. 888 ; Hutton v. Marx, 69 Md. 252 , 14 A. 684 . The fact that the case was not within the Act did not prevent the case from proceeding as a common law action, but it has a bearing upon the right to the counsel fee subsequently allowed. Mutual Life Insurance Co. v. Murray, 111 Md. 600, 609 , 75 A. 348 ; Petite v. Homes, 184 Md. 377 , 41 A. 2d 71 . Even if the fourth count was properly within the Act, the