Standard Wholesale Phosphate & Acid Works, Inc. v. Starler

Shehan, J., delivered the opinion of the Court. Aaron Starler, appellee, brought a suit in assumpsit in the Baltimore City Court against the Standard Wholesale Phosphate & Acid Works, Inc., appellant, on an open account. The appellant, the Standard Wholesale Phosphate & Acid Works, Inc., pleaded the general issue pleas and a special plea of set-off, containing the first four common counts and a special count for a sum greater than that of the plaintiff. The defendant also moved for and obtained a rule security for costs.

This rule was not complied with in the time allowed, nor were there filed replications, whereupon a motion was made by the defendant for a judgment by default against the plaintiff “for want of replication and for want of plea to counter suit of the defendant as against the plaintiff under the defendant’s third plea,” and on January 28th, 1935, a judgment by default was entered against the plaintiff on this motion. On the same day and at the same time the defendant moved for a judgment of non pros, because of the failure of the plaintiff to comply with the rule security for costs. On January 28th, 1935, a judgment of non pros, was entered in favor of the defendant, and also a judgment for costs. On March 20th, 1935, the plaintiff moved to strike out both judgments, to which the defendant, the Standard Wholesale Phosphate & Acid Works, Inc., filed an answer asking that these motions to strike out the two judgments be dismissed.

The motion of the plaintiff to strike out the judgment by default for want of replication and plea to the counterclaim was granted, and the motion of the plaintiff to strike out the judgment of non pros, was overruled. The result of these rulings was to completely and entirely dispose of this litigation. The judgment on the counterclaim was stricken out and the judgment of non ⁴⁴⁵ pros, for failure to comply with the rule security for costs was permitted to stand. The question here presented is whether the court erred in entirely disposing of the case by its action, and whether the court had the right to dispose of the counterclaim in the manner and form above recited.

It had been definitely decided in this state, prior to the Act of 1920, chapter 661, that the plaintiff had the right to dismiss or relinquish its suit at law, and in so doing to dispose of a counterclaim pleaded by way of set-off. In the case of Gildea v. Lund, 131 Md. 385 ,