Thillman v. Shadrick

McSherry, J., delivered the opinion of the Court. The appellee sued the 'appellant in the Superior Court of Baltimore City. The suit was brought under the Act of eighteen hundred and eighty-six, chapter ⁵²⁹ one hundred and eighty-four. The declaration filed in the case contained only the common money counts.

The cause of action, verified by affidavit, and accompanying the narr., was as follows: “Baltimore, November 19th, 1887. Berhakd Thildmak, To Richard H. Shadrick, Dr. To a balance due oh the purchase money of nine houses on the East side of Monroe Street, South of McHenry Street, Baltimore City, . . . 8365.00.” The appellant appeared in due season and filed pleas of never indebted and that he did not promise as alleged, which were supported by his affidavit. This affidavit of defence being defective because not conforming to the Act of eighteen hundred and eighty-six, chapter one hundred and eighty-four, section one hundred and seventy, as construed by this Court in the recent case of Adler vs. Crook, et al., 68 Md., 494 , a judgment by default was entered under said section one hundred and seventy against the appellant and was extended the same day. Two days afterwards the appellant filed a motion to strike out the judgment and assigned amongst others the following reason, viz., “because the plaintiff has not filed a sufficient statement of particulars of the alleged indebtedness of the defendant.” This motion was overruled and from that action of the Court the present appeal has been taken.

The only question which we need consider is, whether the appellee so far complied with the provisions of section 171 of the Act of 1886 in respect to filing an account, or a sufficient statement of the particulars of the appellant’s alleged indebtedness as to entitle him, the appellee, to a judgment by default under that statute. Sec. 171 declares that “the plaintiff shall not be entitled to judgment under the preceding sec ⁵³⁰ tion, unless at the time of bringing his action he shall file with his declaration an affidavit * * * * stating* the true amount the defendant is indebted to him ****** anq giian also file the bond, bill of exchange, promissory note or other writing or account by which the defendant is so indebted, or if the action he founded upon a verbal or implied contract, shall file a statement of the particulars of the defendant’s indebtedness thereunder * * *” The object of the Act was, in cases to which it applied, to obtain from both plaintiff and defendant a definite and sworn statement of both the claim and the defence (if any,) so that the parties might know exactly wherein they differed and shape their action accordingly.” Adler vs. Crook, et al., supra. Now, there was no bond, bill or written contract filed, and unless the cause of action which we have set forth be an account or a statement of the particulars of the defendant’s indebtedness, the appellee was not entitled to a judgment by default. If he was not entitled to-such a judgment by reason of having failed to bring his case within the provisions of the statute, the Court was clearly without jurisdiction to enter it.

And if the Court had no jurisdiction, the irregular entry of the judgment by default could not aid or supply that want of jurisdiction. The proceeding is a special, statutory one, and it is only when the provisions of the Act are strictly complied with that the Court has authority to enter a judgment by default under it. De Atley vs. Senior, 55 Md., 482 . This circumstance distinguishes this case from those relied on by the appellee, where judgments by default, regularly entered in the exercise of the Court’s general powers, were held to settle conclusively the question of jurisdiction without regard to any of the subsequent proceedings.

As we