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Ill. 110, 66 N. E. 1047; Pomeroy's Eq. Jur., tually summoned, or had voluntarily appear(3d Ed.) vol. 6, 8 663 et seq.; High on In-ed to the summons, and had neglected to junctions (3d Ed.) vol. 1, § 229. The right make available defenses. The principle of to such equitable relief rests upon the these cases is entirely consistent with the ground that the judgment is a nullity, and doctrine upon which we base our present does not depend upon the ability of the party decision. against whom it was rendered to show that [6] It was urged that there is no occasion he had no independent information as to shown on this record for intervention by the pendency of the suit. In Wilcke v. Du- injunction, because the bill does not allege ross, 144 Mich. 243, 107 N. W. 907, 115 Am. any attempt to execute the judgment. The St. Rep. 394, there was service of process appellant's letter, exhibited with the bill, on the daughter of the person intended to be calls the attention of the appellees to the summoned, and the latter had actual knowl-judgment of condemnation, informs them edge of the proceeding, but the court held that the time for appeal has expired, and that there was no jurisdiction to enter judg-requests payment without further delay. ment against the person sought to be served This plainly portended an enforcement of by the writ, and that equity would restrain the judgment, and the appellees were not its enforcement. It was held, in David required to submit to the annoyance of a Bradley Mfg. Co. v. Burrhus, 135 Iowa, 324, levy on their property before seeking the 112 N. W. 765, that, where there was no protection of a court of equity. Brauer v. proper service of notice or voluntary ap- Refrigerating Co., 99 Md. 381, 58 Atl. 21, 66 pearance as provided by the statute, it was L. R. A. 403, 105 Am. St. Rep. 304; Didier immaterial whether the one proposed to be v. Merryman, 114 Md. 434, 79 Atl. 597. subjected to the judgment may have other

Order affirmed, with costs, and cause re wise received knowledge of the action. The manded. same principle was applied in Harrell V. Mexico Cattle Co., 73 Tex. 612, 11 S. W. 863,

(116 Md. 190) and Savings Bank of St. Paul v. Authier, 52

BETZ v. P. WELTY & CO. Minn. 98, 53 N. W. 812, 18 L. R. A. 498 and the general rule to this effect is stated in

(Court of Appeals of Maryland. June 23,

1911.) 23 Cyc. 685.

1. JUDGMENT (8 106*) - ANSWER - TIME FOR [5] The facts of the case before us are ANSWER. ample, in our opinion, to entitle the appel Under Acts 1902, c. 409, providing that in lees to equitable relief, even upon the as- any suit on a contract the plaintiff, if affidavit

be made, shall be entitled to judgment on mosumption that they were aware of the at- tion in writing at any time after 15 days from tempt to make them garnishees. It is ad- the return day, even though the defendant may mitted by the demurrer that the weekly have pleaded, unless such plea contains a good

defense and is verified by oath, but that the wages sought to be attached were always court may at any time before judgment extend paid as they accrued, and that they never the time for filing such plea and affidavit, a accumulated. It thus appears that when plaintiff may take a default judgment where 'dethe attachment was laid there could not time, even though defendant has since requested

fendant has failed to plead within the required have been more than $13 due from the ap- leave to plead. pellees to the original judgment debtor. By [Ed. Note.--For other cases, see Judgment, section 33 of article 9 of the Code it is Cent. Dig. &$ 180–197; Dec. Dig. § 106.*] provided that wages or hire, not actually 2. APPEAL AND ERROR (8 679*) - RECORD — due, shall not be attachable, and $100 of


The action of the trial court in refusing to such wages or hire shall "always be ex allow a defendant to plead after the time preempt from attachment by any process what-scribed by Acts 1902, c. 409, which also proever.” In the face of this provision, and vided that the court, at any time before judgupon the facts here conceded, the attaching time' for pleading, cannot be reviewed on ap

ment, may, upon good cause shown, extend the creditor had no right to a judgment for any peal, where the record does not show what examount against these appellees. First Natl. cuse was offered for delay. Bank v. Weckler, 52 Md. 41. Yet, notwith

[Ed. Note.-For other cases, see Appeal and

Error, Cent. Dig. 88 2878-2879; Dec. Dig. standing the failure of personal service ap- 679.* parent from the constable's return, and in 3. JUDGMENT (8 652*)

3. JUDGMENT ($652*) – CONCLUSIVENESS spite of the declaration which it reported

JUDGMENTS BY DEFAULT. from the appellee's agent that they had no A judgment by default conclusively estabattachable funds in their hands, the action lished the liability of the defendant; and hence,

in a subsequent proceeding to assess the damwas pressed to the ex parte judgment in ages, defendant may not offer evidence contracontroversy. Under these circumstances, pre- dicting such liability. sented by due averments in the bill, we have [Ed. Note.-For other cases, see Judgment, no hesitation in holding that the demurrer Cent. Dig. § 1164; Dec. Dig. 8' 652.*] was properly overruled. In the numerous 4. JUDGMENT (8 126*) — JUDGMENTS BY DE

FAULT_PROOF OF CAUSE OF ACTION. cases cited by the appellant, the parties

Though a judgment by default in a concomplaining of the judgments had been ac-l tractual action establishes the liability of de




fendant, it is incumbent upon plaintiff to prove , not resist the entry of judgment for the purthe amount of such liability.

pose of delay or of giving priority to others. [Ed. Note. For other cases, see Judgment, E. R. Johnston, Deputy Clerk.” Cent. Dig. SS 228-230; Dec. Dig. $ 126.*] 5. APPEAL AND ERROR ($1051*)—REVIEW-moved for a judgment by default “for want

On the 30th of December, the plaintiff HARMLESS ERROR.

Where, after a default judgment against of a plea verified by affidavit (or for want defendant, plaintiff offered evidence that he did of a sufficient plea, or for want of a suffinot know defendant's proper name, but that she cient affidavit),” and on January 3, 1911, was the party he intended to sue, and that he had sued her before by another name, but that judgment by default was entered. The folthe case had been nonprossed, the admission lowing day (January 4th) a motion for a new of this evidence was harmless, if erroneous, be-trial was filed, upon which a new trial was cause the liability of defendant was established by the judgment.

granted on January 30, 1911. [Ed. Note.-For other cases, see Appeal and

It is disclosed by the record, although it Error, Cent. Dig. 88 4161-4170; Dec. Dig. 8 does not appear in the docket entries, that 1051.*]

after the granting of a new trial, and on Appeal from Circuit Court, Allegany Coun- the same day thereof, the defendant offered ty; Robert R. Henderson, Judge.

to file her plea of "never indebted as allegAction by P. Welty & Co. against Eliza- ed” and affidavit, as required by the said beth Betz. From a judgment for plaintiff, statute, but the court, upon motion of ne defendant appeals. Affirmed.

recipiatur, refused to receive the same. Argued before BOYD, C. J., and BRIS- Judgment by default was thereafter, on the COE, PEARCE, BURKE, PATTISON, UR- same day, entered, as shown by the docket

entries. NER, and STOCKBRIDGE, JJ.

[1, 2] The first question raised by this apJ. W. S. Cochrane, for appellant. Urner peal is as to the ruling of the court in refusG. Carl, for appellee.

ing to receive the plea offered by the defend

ant on January 30, 1911, more than two PATTISON, J. This action was brought months after the return day of the sumby the appellee against Elizabeth Betz, the mons. No plea had hitherto been filed; in appellant, under the provisions of the Acts fact, no pleading of any character had been of 1902, c. 409, known as the practice act, filed by the defendant to the suit instituted for Allegany county, to recover from the de- against her, other than the demurrer to the fendant the amount claimed to be due and whole declaration and cause of action above owing upon an open account.

mentioned, and these were filed more than The declaration, consisting of the common 40 days after the return of the writ, and at counts, was filed at the time of the institu- a time when, under the statute, the plaintion of the suit, and appended thereto was tiff was entitled to its judgment by default, an affidavit of the plaintiff, and filed there and which were evidently treated by the with was the open account, as required by plaintiff in filing his motion, and by the the local statute above mentioned, in which court in entering the judgment by default, the name of the debtor appeared as Mrs. as a nullity, and, as we think, properly so. Henry Betz. The summons was issued on Knickerbocker Life Ins. Co. v. Hoeske, 32 October 26, 1910, and made returnable on Md. 325; Gemmell v. Davis, 71 Md. 464, 18 the 14th day of November following, and Atl. 955. under the statute the defendant was re The statute upon which this suit is instiquired to plead to the declaration within 15 tuted provides that: "In any suit when the days from the said return day.

cause of action is a contract, whether in On the 28th of December, 1910, 44 days writing or not, or whether expressed or imafter the return day, the defendant, by her plied, the plaintiff, if affidavit or affirmacounsel, filed the following demurrer, as it is tion be made as hereinafter stated, shall be termed in the record: "Elizabeth Roan, by entitled to judgment to be entered by the J. W. Scott Cochrane, her attorney, appears court or clerk thereof, on motion in writing, in this cause as the party upon whom serv- at any time after fifteen days from the reice of summons was made as 'Elizabeth turn day, to which the defendant shall have Betz,' and demurs to the whole declaration been summoned, although

although the defendant and cause of action appended thereto." may have pleaded, unless such plea contains

On the following day (December 29th), he a good defense and unless the defendant or filed the following affidavit: “Personally ap- , some one on his behalf shall, under oath or peared before me, the subscriber, deputy affirmation, state that every plea so pleadclerk of the circuit court in and for Alle- ed by the defendant is true," etc. And in gany county, Md., J. W. S. Cochrane, coun- the latter clause of the section it is provided sel for the defendant in the above case, and that: “The court, for good cause shown, made oath in due form of law that the de- may by its order in writing, passed at any fendant has a bona fide intention of making time before judgment, extend the time for a defense and contesting the right of judg- filing such plea and affidavits, which extenment in the said above case, and that he doession shall suspend until the expiration there

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes

of the plaintiff's rights to enter judgment un- , the defendant excepted. Thereafter the de der this section."

fendant offered her own evidence, in which In the case of Gemmell v. Davis, supra, she stated "that her name is not Mrs. Henry in which case the pleas had been filed with Betz; that her name is Elizabeth Roan; out the permission of the court after the that she is the widow of Thomas Roan, deexpiration of the 15 days from the return ceased; that she was formerly married to a day, the court, in construing the local stat- man by the name of Henry Betz, who died ute for Baltimore city from which the pro- some 10 or 12 years ago; that she then marvisions of the statute here involved, in which ried Thomas Roan, now deceased; that she we are now concerned, were copied, said: was not in business, and did not make nor “The plaintiff has a right, at any time after incur in any way the bill sued on; that her the expiration of the 15 days from the re- son by her first marriage, Henry Betz, was turn day, to apply for and obtain judgment in the saloon business, but that she had no as by default, unless there be a plea by the interest in the business; that she knows defendant showing a good defense, and veri- but one Mrs. Henry Betz, and that is the fied in the manner prescribed by the statute. wife of her said son, who was in the saloon Such plea the defendant may plead at any business when the bill sued on was alleged time within the 15 days, without special to have been contracted.” To the admission leave of the court. But, if the 15 days from of this testimony, the plaintiff objected, and, the return day have expired, and the plain the court sustaining the objection, the defendtiff's right to judgment has accrued, in de- ant excepted thereto. fault of a good plea pleaded, in such case, [4] As stated above, the judgment by dethe defendant cannot arrest the right of the fault had been entered. “The effect of the plaintiff to demand and obtain his judgment, judgment by default is to establish the deexcept in the manner prescribed by the terms fendant's liability. Two points are establishof the statute. The defendant can file no ed by the recovery of a judgment by default: plea after the expiration of the 15 days, un- (1) The jurisdiction of the court to pass it; less it be by leave of the court first obtained, and (2) the liability of the defendant to the upon good cause shown, before judgment plaintiff for something, and for these purposentered."

es such a judgment is as binding as any In this case more than two months had other.” Poe, vol. 2, $$ 369 and 372. It was expired after the return day when the de- incumbent upon the plaintiff to prove the fendant asked leave of the court to file her amount for which the defendant was liable, plea, which was refused her. For what but it was not necessary for it to offer proof cause the defendant asked leave to file her as to her liability, for this was established plea after the expiration of the time allowed by the judgment, and any testimony offered, her under the statute is not shown by the contradicting such liability, was inadmissible. record. Therefore, if the action of the court [5] Our predecessors, so early as the case below in refusing to permit the defendant to of Green v. Hamilton, 16 Md. 329,77 Am. file her plea after the expiration of the time Dec. 295, held that a judgment by default, allowed her by law, upon cause shown by if regularly entered, is as binding as any her, be reviewable by this court, such cause other, as far as respects the power and juor facts upon which she based her request risdiction of the court in declaring that the are not before it, and therefore it cannot plaintiff is entitled. Mailhouse v. Inloes et pass upon the correctness of the court in al., 18 Md. 333; Heffner v. Lynch, 21 Md. its ruling thereon.

555. And Judge Alvey, in the case of Loney [3] Upon the refusal to receive the plea, v. Bailey and Caldwell, 43 Md. 15, after a judgment by default was entered. It was quoting from Green v. Hamilton, supra, that then that the plaintiff proceeded to have its which we have here above quoted said: "So damages assessed, and in the offer of evi- far, then, as the question of the right of the dence for that purpose the second question plaintiff to recover is concerned, the judgunder this appeal arises. It will be borne in ment by default is decisive for that, leaving mind that the defendant was sued as Eliza- the amount to be subsequently ascertained; beth Betz, while in the account she is refer- and, to the extent that such judgment is dered to as Mrs. Henry Betz. The plaintiff of- cisive, it stands upon the same footing of fered the evidence of its attorney, who stat- all other final judgments."

This person, ed that he did not know what the defendant's whatever be her name, is the one brought into proper name was, whether Elizabeth Roan this court as the defendant in this suit or Elizabeth Betz; that he knew she was against Elizabeth Betz. Had she so wished, once Mrs. Henry Betz, and she was the party her true name could, by amendment, have he intended to sue; that he had sued her been substituted for the name thus improperbefore on the same cause of action as Eliza- ly used. The opportunity was afforded her beth Roan, and that the case was nonprossed to make any proper defense to the claim that on the call of the docket by reason of the she may have had, but she failed to avail absence of the plaintiff's counsel. To the ad-herself of this opportunity, and suffered mission of this evidence, the defendant ob- judgment by default to go against her. It jected, but the court overruled the objection was probably by reason of the existence of




made evident by the demurrer filed by, fendant to defeat the action, is defective, and her, that the plaintiff was prompted to offer is properly refused. the testimony tending to show that it was dig. 88 613-623; Dec. Dig. § 253.*]

[Ed. Note. For other cases, see Trial, Cent. against her (the person upon whom the summons was served) that suit was intended to 6. TRIAL (S243*)-INSTRUCTIONS-CONFUSED

AND MISLEADING INSTRUCTIONS. be brought. Her liability, however, was al Instructions which are so absolutely inready established by the judgment, and this consistent upon the measure of damages in the testimony, if wrongly admitted, could only be action that conformity with one necessarily imregarded as superfluous, and as working no which the theories are conflicting and directly

plies a disregard of the one or the other, and in injury to the defendant. But the testimony opposed, are calculated to mislead the jury, and of the defendant was properly excluded, if should not be given. for no other reason, because it tended to con- Dig. ss 564, 565; Dec. Dig. $ 243.*]

[Ed. Note.-For other cases, see Trial, Cent. tradict the liability of the defendant after Dig. $$ 564, 565; Dec. Dig. § 243.*] the same had been established by the judg- 7. APPEAL AND ERROR ($ 179*)-INSTRUCTIONS

-NECESSITY OF REFERENCE TO PLEADINGS. ment, which was final as to her liability. Where one of the prayers in assumpsit on

From what we have said, the judgment of the common counts asked the court to instruct the court below will be affirmed.

that “there was no evidence under any count in Judgment affirmed, with costs to the ap- to the material averments of the declaration,'

the declaration," and another prayer "referred pellee.

such reference to the pleadings is sufficient to permit an examination thereof.

[Ed. Note. For other cases, see Appeal and (116 Md. 201)

Error, Cent. Dig. $8 1137–1140; Dec. Dig. 8 CATANZARO DI GIORGIO CO. V. F. W.

179.*] STOCK & SONS.




Plaintiff, in June, 1901, brought suit in No question can be considered or passed assumpsit on the common counts on an open acupon by the Supreme Court which does not

count for the value of a cargo of fruit alleged appear by the record to have been raised or

to have been sold to defendant, and the declarapassed upon by the court below.

tion was amended in June, 1903, to state an ac

tion in trover. On April 4, 1905, a second [Ed. Note.- For other cases, see Appeal and amended declaration was filed in assumpsit, and Error, Cent. Dig. $8 1018–1034; Dec. Dig. 8 a new cause of action filed with the declaration. 169.*]

Held, that the amendment, changing the form 2. APPEAL AND ERROR (8 919*) - REVIEW

of the action from trover to assumpsit, was PRESUMPTIONS_STRIKING OUT PLEADINGS. equivalent to a new action as of the date of

Where the rulings of the court are not in the amendment, so as to be open to the defense the record, and there is nothing except the dock of the three-year statute of limitations. et entries, which do not show why the court [Ed. Note.-For_other cases, see Limitation permitted the plaintiff to strike out the replica of Actions, Cent. Dig. $$ 543–547; Dec. Dig. $ tion to a plea, or why it struck out the plea, 127.*] the presumption is that the court ruled and decided correctly.

Appeal from Baltimore City Court; Thos. [Ed. Note. For other cases, see Appeal and Ireland Elliott, Judge. Error, Cent. Dig. $ 3713; Dec. Dig. 919.*] Action by F. W. Stock & Sons against the 3. MONEY RECEIVED ($ 19*)-RECOVERY.

Catanzaro Di Giorgio Company. Judgment The measure of damages, in assumpsit on for plaintiffs, and defendant appeals. Rethe common counts on open account for the val- versed. ue of a cargo of fruit which defendant had received and sold, is not the value of the fruit at

Argued before BOYD, C. J., and BRISthe time of its receipt by defendant, but the COE, PATTISON, URNER, and STOCKamount of money received by the defendant BRIDGE, JJ. from the sale for the use of the plaintiff, with interest in the discretion of the jury.

Eugene O'Dunne and William S. Bryan, [Ed. Note. For other cases, see Money Re- Jr., for appellant. Clarence A. Tucker and ceived, Dec. Dig. $ 19.*]

Joseph N. Ulman, for appellees. 4. TRIAL ( 253*) - REQUESTS - INSTRUCTION IGNORING EVIDENCE.

BRISCOE, J. This is an action on the comA request, in an action on the common mon counts in assumpsit originally brought counts on open account for the value of a cargo of fruit sold to defendant, which segregates

in the superior court of Baltimore city, on a portion of the evidence and directs the jury to the 5th day of June, 1901, by the appellee find in favor of the plaintiff upon this evidence, against the appellant, on an open account, and not upon the whole evidence, and which to recover for the value of a cargo of fruit, ignores evidence tending to show that the defendant was a bona fide purchaser for value, is consisting of bananas, oranges, nuts, and othproperly refused.

er tropical fruits, shipped from Jamaica by [Ed. Note.-For other cases, see Trial, Cent. steamer to Baltimore. The cargo was conDig. $$ 613–623; Dec. Dig. $ 253.*]

signed by the bill of lading to the appellee, 5. TRIAL ( 253*)-REQUESTS—IGNORING DE- but on proper indorsement by them was FENSES.

turned over to the appellant, who subseAn instruction requested by plaintiff, which excludes from the consideration of the jury the quently sold the fruit. evidence and defenses relied upon by the de

The case has been tried at least five times *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes

81 A.-25

in the Baltimore city courts, resulting in "13th, November, 1906.-Order of court several verdicts for the plaintiff, one in favor granting leave filed. of the defendant, and several mistrials. To "13th, November, 1906.-Plaintiff's replicathe declaration filed on the 5th day of June, tion to defendant's 4th plea struck out. Or1901, the defendant pleaded the general issue der of plaintiff's attorney filed. and pleas in assumpsit.

"13th, November, 1906.-Motion by plainOn June 4, 1903, the plaintiff, by leave of tiffs to strike out the defendant's 4th plea court, filed the following amended declara- filed. tion in trover: "For that the defendant con "13th, November, 1906.-Affidavit of Joseph verted to its own use and wrongfully de- N. Ulman in support of plaintiff's motion prived the plaintiffs of the use and posses- to strike out the defendant's 4th plea filed. sion of the goods and chattels of the plain- Service admitted. tiffs; that is to say, of certain merchandise, "8th, December, 1906.-Motion by the deconsisting of bananas and oranges, and val- fendant that the affidavit of Joseph N. Ulued at $723.25, and to this declaration the man filed in support of plaintiff's motion to general issue plea of non cul in tort was strike out defendant's 4th plea be stricken filed. On October 27, 1903, the case was re- out. Reasons filed. Service admitted. moved to the Baltimore city court, and upon “24th, January, 1907.-Defendant's motion trial, on the 12th of November, 1903, a ver- to strike out the plaintiff's affidavit filed in dict was rendered by a jury for $776.96 in support of the plaintiff's motion to strike favor of the plaintiff, but which was subse- out the defendant's 4th plea 'granted.' quently set aside by the court, and a new tri

"24th, January, 1907.—Plaintiff's motion to al granted. On March 29, 1903, a trial was strike out the defendant's 4th plea 'granted.' begun and a jury was sworn, but, upon leave

“24th, January, 1907.—Defendant's motion granted to amend the declaration from tro-to strike out the plaintiff's replication to the ver to assumpsit, the case was continued.

defendant's 3rd plea 'refused.' Order of On April 4, 1905, the appellees filed a sec

court filed. ond amended declaration, changing the form

"4th, December, 1907.-Jury sworn. of action from trover to assumpsit on the common counts, and claimed $1,500 damages, defendant to the plaintiff to produce at the

"5th, December, 1907.-Notice from the and to this declaration was annexed a state- trial of above cause the ledger of Vessrs. F. ment of account between the Catanzaro W. Stock & Sons, showing the state of acCompany and F. W. Stock & Sons. To the declaration, the appellant, on the 7th of counts between the plaintiffs and the NorApril, 1905, filed the general issue pleas and folk & West India Fruit & Steamship two special pleas of limitation, as follows: Company. Also all books of account of any “For a first plea, that it never was indebted character belonging to the Norfolk & West as alleged; and for a second plea says that India Fruit & Steamship Company, or conit did not promise as alleged; and for a taining evidence of any of its business, filed.

Service admitted. third plea the defendant says that the alleged cause of action did not accrue within

"5th, December, 1907.-Verdict in favor of

defendant. three years before this suit; and for a fourth plea the defendant says that the al

"5th, December, 1907.-Judgment on verleged cause of action did not accrue within dict nisi. three years prior to the commencement of

"7th, December, 1907.-Plaintiff's motion this suit, to wit, March 31, 1905.” On the for a new trial. Reasons filed. 27th day of April, 1905, the plaintiff joined

"19th, December, 1907.-Plaintiff's motion issue on the first and second pleas, and filed for a new trial 'granted.' a replication to the third and fourth pleas. "10th, May, 1909.-Notice from the plainSubsequently petitions, motions, counter mo- tiffs to the defendant under the 27th rule of tions, and other proceedings almost too nu-court filed. Service admitted. merous to mention, were interposed before "1st, June, 1909.-Jury sworn. another trial was had, as will appear from “2nd, June, 1909.-The jury being unable the following docket entries in the case: to agree upon a verdict were discharged by

the court. "Docket Entries.

"14th, September, 1909.-Xotice from the “24th, May, 1905.-Petition of defendant to plaintiffs to the defendant under the 27th dismiss the replications to the 3rd and 4th rule of court filed. Service admitted. pleas. Reasons filed.

"10th, February, 1910.-Deposition on be“24th, May, 1905.-Order of court extend half of the defendant taken before J. F. Miling time for filing a rejoinder or rejoinders holland, a notary public of Kingston, Jafor 10 days after the disposition of the peti-maica, B. W. I., filed. tion to strike out the replications to the 3rd "6th, October, 1910.-Notice from the plainand 4th pleas filed.

tiffs to the defendant under the 27th rule of “13th, November, 1906.--Petition of plain-court filed. Service admitted. tiffs to strike out their replications to the "15th, November, 1910.-Jury sworn. defendant's 4th plea and affidavit in support “16th, November, 1910.-Verdict in favor of

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