Wolfe v. Murray

Schmucker, J., delivered the opinion of the Court. This is an appeal from an order of the Baltimore City Court which rescinded a previous order striking out a judgment and declared the judgment to be restored. ⁷²⁸ '' The suit was originally instituted in the Circuit Court for Howard County on April 13th, 1894, against John H. R. Wolfe and his wife, Lavinia, upon the common counts in assumpsit. After having been continued from term to term until March 22nd, 1895, it was then removed on affidavit by the defendants to the Circuit Court for Baltimore County where the defendants filed the general issue pleas on May 13th, 1895. John H. R. Wolfe then died and the plaintiff suggested his death and, instead of docketing a separate suit against his administrator as is required in such cases by sec. 50 of Art. 4 of the Code, procured the administrator to be made a co-defendant to the existing suit and summoned upon process issued out of the Circuit Court for Baltimore County.

At that stage of the proceedings the defendants with leave of the Court withdrew their pleas and filed a demurrer to the declaration. The Court sustained the demurrer and directed the plaintiffs to declare over. The case was continued in that condition from term to term until the March Term, 1897, when it was put upon the stet docket under the rule of Court after having been called four times and continued. On December 9th, 1898, while the case was upon the stet docket the plaintiff so amended his narr. as to aver that the transactions out of which the alleged indebtedness of the defendants arose had been made during the lifetime of the said John H. R. Wolfe and his wife, Lavinia, “at their written request.” Nothing further seems to have been done until the 8th of February, 1901, when the plaintiff, without first procuring the case to be taken from the stet docket and restored to an active condition, filed a suggestion and affidavit for its removal and it was thereupon transmitted to the Baltimore City Court where it was placed upon the trial docket and on May 31st, 1901, on motion of the plaintiff a judgment by default was entered against the defendants for want of a plea to the amended narr.

This judgment was made final and extended on June 3rd, 1901. On March 19th, 1902, the Court struck out this judgment ⁷²⁹ on motion of the defendants who were granted ten days within which to plead to the amended narr. On March 2$th, 1902, they filed pleas to the jurisdiction of the Court. To these pleas the plaintiff filed a motion ne recipiatur which the Court granted on November 3rd, 1902, refusing the defendant’s application to plead over, and at the same time passed the order appealed from, which is as follows : “The motion of the defendants to strike out the judgment entered against them in this cause having been fully argued before the Court, the Court thereupon on the 19th day of March, 1902, made an oral order directing the judgment to be stricken out on condition that the'defendant’s plead to the merits within 10 days from the date of the order, which order or judgment the clerk by inadvertence entered on the docket.

Motion to strike out judgment granted, judgment stricken out and defendants to plead within ten days, and the defendants having thereafter filed a plea to the