Wilhelm v. Mitchell

Pattison, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Baltimore County, overruling a motion to strike out a judgment entered in favor of the appellee against the appellant. The suit, in which the judgment sought to be stricken out was rendered, was brought on May 26th, 1916, under what is. known as “The Speedy Judgment Act” for Baltimore County, Chapter 631 of the Acts of 1894, as amended by Chapter 385 of the Acts of 1912, Chapter 817 of the Acts of 1914 and Chapter 184 of the Acts of 1916. The declaration contained the common counts only, and. with it was filed the following account or cause of action verified by the affidavit of the plaintiff: “Monkton, Md., March 27, 1915.

Estate of Mrs. Mary J. Wilhelm, To Dr. A. B. Mitchell, Dr. To amt. of acct. rendered Aug. 31, 1907......$183.00 To amt. of acct: rendered May 6, 1908...... 28.00 To subsequent attention as follows: 1908, May 8.............................. 1912, May 28............................. 1915, Eeb. 15, Eeb. 26, Eeb. 27, Eeb. 28....... 8.25 $219.45 ³⁶⁰ ■^.-..Credits: 1909— June 21, cash....................$10.00 Oct. 28, .cash..................... 10.00 1910— Aug. 2, cash.................... 8.00 Aug. 29, cash.................... 25.00 - 53.00 Balance.............................$166.45 1916— Eeb. 23, by cash on account............. $53.00 The defendant being duly summoned, but failing to- appear and plead to the declaration ■within the time prescribed by ‘the statute, the plaintiff filed his motion in writing, as provided by the Act, asking “the Court to enter a judgment by 'default against the defendant for want of proper plea, affidavit and certificate, as required by the statute in such case made and provided and * * * to extend said judgment.” Upon this motion a judgment was entered by order of the Court. '■ Thereafter the defendant filed his motion to strike out the judgment so entered, assigning as one of the reasons therefor the insufficiency of the account under the provision of the Act, under which the action was brought and the judgment rendered. This motion was overruled and it is from the action of the .Court in overruling it that this appeal is taken. The Act provides, Chapter 631, section 18'Gr of the Acts of 1894, that the plaintiff shall not be entitled to judgment under the provisions of said Act, “Unless at the time of bringing his action he shall file his declaration, with an affidavit, or affirmation, * * * stating the true amount the der fendant is indebted to' him, over and above all discounts, and * * * if the action be founded upon a verbal or implied contract shall file his statement of the particulars of the defendant’s indebtedness thereunder.” ³⁶¹ The account, as stated above, is the only cause of action that was filed in the case and should it be found that it does not meet the requirements of the statute, in that it fails to