Watson v. McHenry

Schmucker, J., delivered the opinion of the Court. The appellee as the holder of an overdue negotiable promissory note sued the appellant as a prior endorser thereon in the Circuit Court for Allegany County on June 22nd, 1906. The declaration contained six common counts in assumpsit and one special count on the note — all in the usual form. The case was removed to the Circuit Court for Garrett County, on the motion and suggestion of the defendant filed April 13th, 1907.

The defendant on June xst, 1907, filed his pleas in the Court in Garrett County setting up in defense of the action the general issue and also a failure to duly notify him of the failure to pay the note by its maker when it fell due. To these pleas was attached an affidavit by the defendant stating “that the above pleas are true to the best of his knowledge and belief and the same is not filed for delay.” Judgment by default and then final judgment having been entered, in the manner hereinafter mentioned, and the Court below having refused the defendant’s motion to strike out the judgment, he took this appeal. The record contains a copy of Rule No. 3, of the Circuit Court for Garrett County, touching the entry of judgments by default, which is as follows: “In all cases on the trial docket, ex contractu, where the declaration shall have been filed before the rule day, judgments will be entered upon the call provided for in the last preceding section, unless there shall have pre ²⁴⁷ viously been filed therein an affidavit of the defendant, or his attorney, that he has a bona fide intention of making a defense in such suit and does not resist the entry of judgment for the purpose of delay or to give priority to others.” There are five bills of exceptions in the record which present exceptions taken under the following circumstances: When the case was called for trial the plaintiff moved for judgment by default in his favor for want of an affidavit of defense in accordance with the requirements of Rule No. 3. The Court granted the motion and entered the judgment by default and to this action the defendant took his first exception.

The judgment by default was we think properly entered. The rule of Court appearing in the record requires the defendant to assert under oath three things first, a bona fide intention of defending the suit, secondly, the absence of any purpose to delay the entry of judgment or thirdly, to secure priority to others. The requirements of this rule were not gratified by the mere affidavit that the pleas were true to the best of the defendant’s knowledge and were not filed for delay. The object of the rule is apparent and salutary and its terms .were doubtless made strict and specific in order to prevent the defeat of its purpose through indirection or evasion.

No other rule of the Circuit Court appears in the record and we must therefore presume that the Court in entering the judgment by default acted in conformity with such of its other rules, if any there were, as related to that subject. Calwell v. Boyer, 8 G. & J. 136 ; Tyler v. Murray, 57 Md. 418 . The defendant’s second exception, which was taken to the Court’s refusal of his motion to strike out the judgment by default against him, is disposed of by what we have already said. The plaintiff having asked for the extension of the judgment by default and the defendant having agreed that the case be tried before the Court without a jury, the plaintiff offered in evidence the dishonored note on which the suit was brought with the notary’s certificate of its protest.

The certificate stated in substance that after the presentment of the note, at ²⁴⁸ the request of the Second Natl. Bank of Cumberland, and its dishonor the notary mailed a separate notice of the dishonor to the maker and each one of the endorsers, including the defendant, under cover to the Hagerstown Bank which was the last previous endorser. The defendant objected to this evidence unless the plaintiff proffered to show actual notice to the endorsers, but the Court admitted it upon proof of the signatures of the maker and endorsers of the note and upon further proof, as the record states, that the maker of the note had received the notice of its dishonor addressed to the defendant, who is his father, and had destroyed it. To this action