Stansbury v. Keady

Brent, J., delivered the opinion of the court. This appeal is taken from an order of the Court of Common Pleas of Baltimore City, overruling a motion made by the defendants, the present appellants, to strike out the judgment upon an inquisition, and to set the inquisition aside. The reasons assigned in support of the motion are six in number, and are as follows: 1st. Surprise. 2nd.

Because the inquisition should have been had and filed at the term during which the judgment by default was entered, or at the next term succeeding such entry. 3rd. Because the judgment on the inquisition was pronounced on the same day on which the inquisition was rendered. 4th. Because the plaintiff had no sufficient cause of action. 5th. Because no breaches of the *bond were filed; and 6th.

Because the record in the replevin suit was not pleaded. We think the case is wholly free from difficulty, and the questions presented may be disposed of very briefly. There is nothing in the record to show that any surprise had been practiced upon the defendants, and we may infer that this ground has been abandoned by them, as the brief and argument, filed in their behalf, is entirely silent upon the point. The objection, that the inquisition was not taken in proper time, is based upon Art. 75, sec. 62, of the Code.

There might be some force in the objection if -that section had not been amended and re-enacted by the Act of 1864, ch. 175. That Act was passed on the 23rd of February, 1864, and took effect from the time of its passage. Its provisions apply, therefore, to the inquisition, which was taken and filed in this case on the 16th day of June following. From it are entirely omitted the words of the former law, which, it is claimed, restrict the time of taking an inquisition, either to the term at which the judgment by default was entered, or to,the term next succeeding.

We do not perceive any limitation as to time in this ³⁶⁸ law, and think there is none, which invalidates the present inquisition. Nor does it make any difference that the judgment by default was rendered before its passage. It embraces by its terms all cases in which a “ judgment by default has been, or shall hereafter be entered.” The next objection is equally groundless. The Act just referred to, after requiring the jury to return their inquisition under their hands and seals, directs that “ the court shall order such judgment to be extended in accordance with the terms of such finding by the jury.” If there is any obligation upon the court to delay in making such extension, it must be found outside of the Act.

It is contended that the 41st rule of the court, requiring a