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Ill. 110, 66 N. E. 1047; Pomeroy's Eq. Jur. (3d Ed.) vol. 6, § 663 et seq.; High on Injunctions (3d Ed.) Vol. 1, § 229. The right to Such equitable relief rests upon the ground that the judgment is a nullity, and does not depend upon the ability of the party against Whom it was rendered to show that he had no independent information as to the pendency of the suit. In Wilcke v. Duross, 144 Mich. 243, 107 N. W. 907, 115 Am. St. Rep. 394, there was service of process on the daughter of the person intended to be Summoned, and the latter had actual knowledge of the proceeding, but the court held that there was no jurisdiction to enter judgment against the person Sought to be served by the Writ, and that equity would restrain its enforcement. It was held, in David Bradley Mfg. Co. v. Burrhus, 135 Iowa, 324, 112 N. W. 765, that, where there was no proper service of notice or voluntary appearance as provided by the statute, it was immaterial whether the one proposed to be subjected to the judgment may have otherWise received knowledge of the action. The Same principle Was applied in Harrell V. Mexico Cattle Co., 73 Tex. 612, 11 S. W. 863, and Savings Bank of St. Paul V. Authier, 52 Minn. 98, 53 N. W. 812, 18 L. R. A. 498, and the general rule to this effect is . stated in 23 Cyc. 685. [5] The factS Of the Case before uS are ample, in our opinion, to entitle the appellees to equitable relief, even upon the asSumption that they Were aware of the attempt to make them garnishees. It is admitted by the demurrer that the weekly wages sought to be attached Were always paid as they accrued, and that they never accumulated. It thus appears that when the attachment was laid there could not have been more than $13 due from the appellees to the original judgment debtor. By Section 33 of article 9 of the Code it is provided that Wages or hire, not actually due, shall not be attachable, and $100 of such wages or hire shall “always be exempt from attachment by any process whatever.” In the face of this provision, and upon the facts here conceded, the attaching creditor had no right to a judgment for any amount against these appelleeS. First Natl. Bank V. Weckler, 52 Md. 41. Yet, notwithstanding the failure of personal service apparent from the constable's return, and in spite of the declaration which it reported from the appellee's agent that they had no attachable funds in their hands, the action was pressed to the ex parte judgment in controversy. Under these circumstances, presented by due averments in the bill, we have no hesitation in holding that the demurrer was properly overruled. In the numerous cases cited by the appellant, the parties complaining of the judgments had been ac

tually summoned, or had voluntarily appeared to the summons, and had neglected to make available defenses. The principle of these cases is entirely consistent with the doctrine upon which we base our present decision.

[6] It was urged that there is no occasion shown on this record for intervention by injunction, because the bill does not allege any attempt to execute the judgment. The appellant's letter, exhibited with the bill, calls the attention of the appellees to the judgment of condemnation, informs them that the time for appeal has expired, and requests payment without further delay. This plainly portended an enforcement of the judgment, and the appellees were not required to submit to the annoyance of a levy on their property before seeking the protection of a court of equity. Brauer v. Refrigerating Co., 99 Md. 381, 58 Atl. 21, 66 L. R. A. 403, 105 Am. St. Rep. 304; Didier V. Merryman, 114 Md. 434, 79 Atl. 597.

Order affirmed, with costs, and cause remanded.

(116 Md. 190) BETZ v. P. WELTY & CO.

(Court of Appeals of Maryland. June 23, 1911.)

1. JUDGMENT (§ 106*) – ANSWER – TIME FOR ANSWER. Under Acts 1902, c. 409, providing that in any suit on a contract the plaintiff, if affidavit be made, shall be entitled to judgment on motion in writing at any time after 15 days from the return day, even though the defendant may have pleaded, unless such plea contains a good defense and is verified by oath, but that the court may at any time before judgment extend the time for filing such plea and affidavit, a plaintiff may take a default judgment where defendant has failed to plead within the required time, even though defendant has since requested leave to plead. [Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 180–197; Dec. Dig. § 106.*]

2. APPEAL AND ERROR ($ 679*) – RECORD QUESTIONS PRESENTED. The action of the trial court in refusing to allow a defendant to plead after the time prescribed by Acts 1902, c. 409, which also provided that the court, at any time before judgment, may, upon good cause shown, extend the time for pleading, cannot be reviewed on appeal, where the record does not show what excuse was offered for delay. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2878–2879; Dec. Dig. § 679.*] 3. JUDGMENT (§ 652*) – CONCLUSIVENESS JUDGMENTS BY DEFAULT. A judgment by default conclusively established the liability of the defendant; and hence, in a subsequent proceeding to assess the damages, defendant may not offer evidence contradicting such liability. [Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1164; Dec. Dig. § 652.*]

4. JUDGMENT (§ 126*) - JUDGMENTS BY DEFAULT-PROOF OF CAUSE OF ACTION.

Though, a judgment by default, in a con

tractual action establishes the liability of de

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fendant, it is incumbent upon plaintiff to prove the amount of such liability. [Ed. Note:-For other cases, see Judgment, Cent. Dig. §§ 228—230; Dec. Dig. § 126.*] 5. APPEAL AND ERRoR (§ 1051*)—REVIEWHARMLESS ERROR. Where, after a default judgment against defendant, plaintiff offered evidence that he did not know defendant's proper name, but that she was the party he intended to sue, and that he had sued her before by another name, but that the case had been nonprossed, the admission of this evidence was harmless, if erroneous, because the liability of defendant was established by the judgment. [Ed. Note.—For other cases, see Appeal and # Cent. Dig. §§ 4161–4170; Dec. Dig. §

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PATTISON, J. This action was brought by the appellee against Elizabeth Betz, the appellant, under the provisions of the Acts of 1902, c. 409, known as the practice act, for Allegany County, to recover from the defendant the amount claimed to be due and owing upon an open account. The declaration, consisting of the common COuntS, Was filed at the time Of the institution of the suit, and appended thereto was an affidavit of the plaintiff, and filed thereWith was the open account, as required by the local statute above mentioned, in which the name of the debtor appeared as Mrs. Henry Betz. The Summons WaS issued On October 26, 1910, and made returnable On the 14th day of November following, and under the Statute the defendant Was reQuired to plead to the declaration Within 15 days from the said return day. On the 28th of December, 1910, 44 days after the return day, the defendant, by her Counsel, filed the following demurrer, as it is termed in the record: “Elizabeth Roan, by J. W. Scott Cochrane, her attorney, appears in this Cause as the party upon Whom service of Summons was made as ‘Elizabeth Betz, and demurs to the whole declaration and CauSe Of action appended thereto.” On the following day (December 29th), he filed the following affidavit: “Personally appeared before me, the subscriber, deputy Clerk Of the circuit Court in and for Allegany county, Md., J. W. S. Cochrane, counsel for the defendant in the above case, and made Oath in due form Of law that the defendant has a bona fide intention of making a defense and contesting the right of judg

BETZ V. P. WELTY & CO.

ment in the said above case, and that he does

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not resist the entry of judgment for the purpose of delay or of giving priority to others. E. R. Johnston, Deputy Clerk.” On the 30th of December, the plaintiff moved for a judgment by default “for want of a plea verified by affidavit (or for want of a sufficient plea, or for want of a sufficient affidavit),” and on January 3, 1911, judgment by default Was entered. The following day (January 4th) a motion for a new trial was filed, upon which a new trial Was granted on January 30, 1911. It is disclosed by the record, although it does not appear in the docket entries, that after the granting of a new trial, and On the same day thereof, the defendant offered to file her plea of “never indebted as alleged” and affidavit, as required by the Said Statute, but the Court, upon motion of ne recipiatur, refused to receive the same. Judgment by default was thereafter, on the Same day, entered, as shown by the docket entries. [1, 2] The first question raised by this appeal is as to the ruling of the court in refusing to receive the plea offered by the defendant On January 30, 1911, more than two months after the return day of the summ0nS. NO plea had hitherto been filed; in fact, no pleading of any character had been filed by the defendant to the Suit instituted against her, Other than the demurrer to the whole declaration and cause of action above mentioned, and these were filed more than 40 days after '' Of the Writ, and at a time When, under the statute, the plaintiff was entitled to its judgment by default, and Which Were evidently treated by the plaintiff in filing his motion, and by the Court in entering the judgment by default, as a nullity, and, as we think, properly so. Ixnickerbocker Life Ins. CO. V. Hoeske, 32 Md. 325; Gemmell V. Davis, 71 Md. 464, 18 Atl. 955. The Statute upon Which this suit is instituted provides that: “In any suit when the Cause of action is a contract, whether in Writing or not, or whether expressed or implied, the plaintiff, if affidavit Or affirmlation be made as hereinafter Stated, Shall be entitled to judgment to be entered by the Court Or Clerk thereof, On motion in Writing, at any time after fifteen days from the return day, to which the defendant shall have been Summoned, although the defendant may have pleaded, unless Such plea Contains a good defense and unless the defendant Or some one on his behalf shall, under oath or affirmation, state that every plea so pleaded by the defendant is true,” etc. And in the latter clause of the section it is provided that: “The court, for good cause shown, may by its Order in Writing, passed at any time before judgment, extend the time for filing such plea and affidavits, which extension shall suspend until the expiration thereof the plaintiff's rights to enter judgment under this Section.” In the Case Of Gemmell W. DaViS, Supra, in which case the pleas had been filed without the permission of the court after the expiration of the 15 days from the return day, the court, in construing the local Statute for Baltimore city from which the provisions of the Statute here involved, in Which we are now concerned, were copied, said: “The plaintiff has a right, at any time after the expiration of the 15 days from the return day, to apply for and obtain judgment as by default, unless there be a plea by the defendant showing a good defense, and Verified in the manner prescribed by the Statute. Such plea the defendant may plead at any time within the 15 days, without special leave Of the Court. But, if the 15 dayS from the return day have expired, and the plaintiff's right to judgment has accrued, in default of a good plea pleaded, in Such case, the defendant cannot arrest the right of the plaintiff to demand and obtain his judgment, except in the manner prescribed by the terms Of the Statute. The defendant can file n0 plea after the expiration of the 15 days, unless it be by leave of the court first obtained, upon good cause shown, before judgment entered.” In this case more than two months had expired after the return day when the defendant asked leave of the Court to file her plea, which was refused her. For what cause the defendant asked leave to file her plea after the expiration of the time allowed her under the statute is not shown by the record. Therefore, if the action of the court below in refusing to permit the defendant to file her plea after the expiration of the time allowed her by law, upon cause shown by her, be reviewable by this court, such cause or facts upon Which she based her request are not before it, and therefore it cannot pass upon the correctness of the court in its ruling thereon. [3] Upon the refusal to receive the plea, a judgment by default was entered. It was then that the plaintiff proceeded to have its damages assessed, and in the offer of evidence for that purpose the second question under this appeal arises. It Will be borne in mind that the defendant WaS Sued as Elizabeth Betz, while in the account She is referred to as Mrs. Henry Betz. The plaintiff offered the evidence of its attorney, Who Stated that he did not knoW What the defendant'S proper name was, whether Elizabeth Roan or Elizabeth Betz; that he knew she was once Mrs. Henry Betz, and she was the party he intended to sue; that he had sued her before on the same cause of action as Elizabeth Roan, and that the case Was nonproSSed On the Call Of the docket by reason of the absence of the plaintiff's counsel. To the admission of this evidence, the defendant objected, but the court overruled the objection

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

the defendant excepted. Thereafter the defendant offered her own evidence, in which She stated “that her name is not Mrs. Henry Betz; that her name is Elizabeth Roan; that she is the widow of Thomas Roan, deCeased; that she was formerly married to a man by the name of Henry Betz, who died Some 10 or 12 years ago; that she then married Thomas Roan, now deceased; that she Was not in business, and did not make nor incur in any way the bill sued on; that her son by her first marriage, Henry Betz, was in the Saloon business, but that she had no interest in the business; that she knows but one Mrs. Henry Betz, and that is the Wife of her Said Son, who was in the Saloon business when the bill sued on was alleged to have been contracted.” To the admission of this testimony, the plaintiff objected, and, the court sustaining the objection, the defendant excepted thereto. [4] As stated above, the judgment by default had been entered. “The effect of the judgment by default is to establish the defendant’s liability. Two points are established by the recovery of a judgment by default: (1) The jurisdiction of the court to pass it; and (2) the liability of the defendant to the plaintiff for Something, and for these purposeS Such a judgment is as binding as any other.” Poe, vol. 2, §§ 369 and 372. It was incumbent upon the plaintiff to prove the amount for Which the defendant Was liable, but it was not necessary for it to offer proof as to her liability, for this was established by the judgment, and any testimony offered, contradicting such liability, was inadmissible. [5] Our predecessors, so early as the case of Green v. Hamilton, 16 Md. 329, 77 Am. Dec. 295, held that a judgment by default, if regularly entered, is as binding as any other, as far as respects the power and jurisdiction of the court in declaring that the plaintiff is cntitled. Mailhouse V. Inloes et al., 18 Md. 333; Heffner v. Lynch, 21 Md. 555. And Judge Alvey, in the case of Loney v. Bailey and Caldwell, 43 Md. 15, after quoting from Green v. Hamilton, supra, that which we have here above quoted said: “So far, then, as the question of the right of the plaintiff to recover is concerned, the judgment by default is decisive for that, leaving the amount to be subsequently ascertained; and, to the extent that such judgment is decisive, it stands upon the same footing of all other final judgments.” This person, Whatever be her name, is the One brought into this court as the defendant in this suit against Elizabeth Betz. Had she so wished, her true name could, by almendment, have been Substituted for the name thus improperly used. The opportunity was afforded her to make any proper defense to the claim that She may have had, but She failed to avail herself of this opportunity, and suffered judgment by default to go against her. It was probably by reason of the existence of

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made evident by the demurrer filed by her, that the plaintiff Was prompted to offer the testimony tending to show that it was against her (the perSon upon Whom the Summons was served) that suit was intended to be brought. Her liability, however, was already established by the judgment, and this testimony, if Wrongly admitted, could only be regarded as Superfluous, and as working no injury to the defendant. But the testimony of the defendant was properly excluded, if for no other reason, because it tended to contradict the liability of the defendant after the same had been established by the judgment, Which was final as to her liability.

From what we have said, the judgment of the Court below Will be affirmed.

Judgment affirmed, With costs to the appellee.

(116 Md. 201)

CATANZARO DI GIORGIO CO. V. F. W. STOCK & SONS.

(Court of Appeals of Maryland. June 23, 1911.)

1. APPEAL AND ERROR (§ 169*) – RECORD — PRESENTATION OF GROUNDS OF REVIEW. No question can be considered or passed upon by the Supreme Court which does not appear by the record to have been raised or passed upon by the court below. [Ed. Note.—For other cases, see Appeal, and # Cent. Dig. §§ 1018–1034; Dec. Dig. §

2. APPEAL AND ERRoR (§ 919*) – REVIEw — PRESUMPTIONS—STRIKING OUT PLEADINGS. Where the rulings of the court are not in the record, and there is nothing except the docket entries, which do not show why the court permitted the plaintiff to strike out the replication to a plea, or why it struck out the plea, the presumption is that the court ruled and decided correctly. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3713; Dec. Dig. § 919.*]

3. MONEY RECEIVED (§ 19*)—RECOVERY. The measure of damages, in assumpsit on the common counts on open account for the value of a cargo of fruit which defendant had received and sold, is not the value of the fruit at the time of its receipt by defendant, but the amount of money received by the defendant from the sale for the use of the plaintiff, with interest in the discretion of the jury.

[Ed. Note.—For other cases, see Money Received, Dec. Dig. § 19.*]

4. TRIAL (§ 253*) – REQUESTS – INSTRUCTION IGNORING EVIDENCE. . . A request, in an action on the common counts on open account for the value of a cargo of fruit sold to defendant, which segregates a portion of the evidence and directs the jury to find in favor of the plaintiff upon this evidence, and not upon the whole evidence, and which ignores evidence tending to show that the defendant was a bona fide purchaser for value, is properly refused. [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 613–623; Dec. Dig. § 253.*]

5. TRIAL (§ 253*)—REQUESTS-IGNORING DEFENSES. An instruction requested by plaintiff, which excludes from the consideration of the jury the evidence and defenses relied upon by the de

CATANZARO DIGIORGIO CO. V. F. W. STOCK & SONS

385

fendant to defeat the action, is defective, and

is properly refused. [Ed. Note.—For other cases, see Trial, Cent.

Dig. §§ 613-623; Dec. Dig. § 253.*]

6. TRIAL ($ 243*)—INSTRUCTIONs—CoNFUSED AND MISLEADING INSTRUCTIONS. Instructions which are so absolutely inconsistent upon the measure of damages in the action that conformity with one necessarily implies a disregard of the one or the other, and in which the theories are conflicting and directly opposed, are calculated to mislead the jury, and should not be given. [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 564, 565; Dec. Dig. $ 243.*] 7. APPEAL AND ERROR (§ 179*)—INSTRUCTIONS —NECESSITY OF REFERENCE TO PLEADINGS. Where one of the prayers in assumpsit on the common counts asked the court to instruct that “there was no evidence under any count in the declaration,” and another prayer “referred to the material averments of the declaration,” such reference to the pleadings is sufficient to permit an examination thereof. [Ed. Note.—For other cases, see Appeal. and Error, Cent. Dig. §§ 1137–1140; Dec. Dig. § 179.*] 8. LIMITATION OF ACTIONS (§ 127*) – COMMENCEMENT OF ACTION - AMENDMENT OF PLEADINGS-AMENDMENT CHANGING FORM OF ACTION. Plaintiff, in June, 1901, brought suit in assumpsit on the common counts on an open account for the value of a cargo of fruit alleged to have been sold to defendant, and the declaration was amended in June, 1903, to state an action in trover. On April 4, 1905, a second amended declaration was filed in assumpsit, and a new cause of action filed with the declaration. Held, that the amendment, changing the form of the action from trover to assumpsit, Was equivalent to a new action as of the date of the amendment, so as to be open to the defense of the three-year statute of limitations. [Ed. Note:—For other cases, see Limitation # Aft" Cent. Dig. §§ 543–547; Dec. Dig. §

Appeal from Baltimore City Court; Thos. Ireland Elliott, Judge.

Action by F. W. Stock & Sons against the Catanzaro Di Giorgio Company. Judgment for plaintiffs, and defendant appealS. ReVersed.

Argued before BOYD, C. J., and BRISCOE, PATTISON, URNER, and STOCKBRIDGE, J.J.

Eugene O’Dunne and William S. Bryan, Jr., for appellant. Clarence A. Tucker and Joseph N. Ulman, for appellees.

BRISCOE, J. This is an action on the common counts in assumpsit originally brought in the superior court of Baltimore city, on

the 5th day of June, 1901, by the appellee

against the appellant, on an Open account,

to recover for the value of a cargo of fruit, consisting of bananas, Oranges, nuts, and other tropical fruitS, Shipped from Jamaica by steamer to Baltimore. The cargo was consigned by the bill of lading"to the appellee, but on proper indorsement by them WaS turned over to the appellant, Who SubSequently sold the fruit. 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

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in the Baltimore city courts, resulting in Several Verdicts for the plaintiff, one in favor Of the defendant, and Several mistrials. To the declaration filed on the 5th day of June, 1901, the defendant pleaded the general issue and pleas in aSSumpsit. On June 4, 1903, the plaintiff, by leave of court, filed the following amended declaration in troWer: Verted to its own use and wrongfully deprived the plaintiffs of the use and possesSion of the goods and chattels of the plaintiffs; that is to say, of certain merchandise, consisting of bananas and oranges, and valued at $723.25, and to this declaration the general issue plea of non cul in tort Was filed. On October 27, 1903, the case was removed to the Baltimore city court, and upon trial, on the 12th of November, 1903, a verdict Was rendered by a jury for $776.96 in favor of the plaintiff, but which was subsequently set aside by the court, and a new trial granted. On March 29, 1905, a trial was begun and a jury was sworn, but, upon leave granted to amend the declaration from troVer to assumpsit, the case WaS Continued. On April 4, 1905, the appellees filed a second amended declaration, changing the form of action from troVer t0 aSSumpSit On the common counts, and claimed $1,500 damages, and to this declaration was annexed a Statement of account betWeen the Catanzaro Company and F. W. Stock & Sons. To the declaration, the appellant, on the 7th of April, 1905, filed the general issue pleas and two special pleas of limitation, as follows: “For a first plea, that it never was indebted as alleged; and for a second plea Says that it did not promise as alleged; and for a third plea the defendant says that the alleged cause of action did not accrue within three years before this suit; and for a fourth plea the defendant Says that the alleged cause of action did not accrue within three years prior to the commencement of this suit, to wit, March 31, 1905.” On the 27th day of April, 1905, the plaintiff joined issue on the first and second pleas, and filed a replication to the third and fourth pleas. Subsequently petitions, motions, counter motions, and other proceedings almost too numerous to mention, were interposed before another trial was had, as Will appear from the following docket entries in the case:

“Docket Entries.

“24th, May, 1905.—Petition of defendant to dismiss the replications to the 3rd and 4th pleas. Reasons filed.

“24th, May, 1905.—Order of court extending time for filing a rejoinder Or rejoinders for 10 days after the disposition of the petition to strike out the replications to the 3rd and 4th pleas filed.

“13th, November, 1906.—Petition of plaintiffs to strike out their replications to the defendant's 4th plea and affidavit in Support

“FOr that the defendant COn

“13th, November, 1906.—Order of court granting leave filed. “13th, November, 1906.—Plaintiff's replication to defendant's 4th plea struck out. Order of plaintiff's attorney filed. “13th, November, 1906.—Motion by plaintiffs to strike out the defendant's 4th plea filed. “13th, November, 1906.—Affidavit of Joseph N. Ulman in support of plaintiff's motion to Strike out the defendant's 4th plea filed.

Service admitted.

“8th, December, 1906.—Motion by the defendant that the affidavit of Joseph N. Ulman filed in Support of plaintiff’s motion to Strike out defendant's 4th plea be stricken Out. ReaSOnS filed. Service admitted. “24th, January, 1907.—Defendant's motion to strike Out the plaintiff's affidavit filed in Support of the plaintiff's motion to strike out the defendant's 4th plea granted.’ “24th, January, 1907.—Plaintiff's motion to strike out the defendant's 4th plea granted.” “24th, January, 1907.—Defendant's motion to strike out the plaintiff's replication to the defendant's 3rd plea ‘refused.” Order of Court filed. “4th, December, 1907.—Jury sworn. “5th, December, 1907.—Notice from the defendant to the plaintiff to produce at the trial Of above cause the ledger of Messrs. F. W. Stock & Sons, showing the state of accounts between the plaintiffs and the Norfolk & West India Fruit & Steamship Company. Also all books of account of any character belonging to the Norfolk & West India Fruit & Steamship Company, or containing evidence of any of its business, filed. Service admitted. “5th, December, 1907.—Verdict in favor of defendant. “5th, December, 1907.—Judgment on Verdict nisi. “7th, December, 1907.—Plaintiff's motion for a new trial. Reasons filed. “19th, December, 1907.—Plaintiff's motion for a new trial granted.” “10th, May, 1909.—Notice from the plaintiffs to the defendant under the 27th rule Of court filed. Service admitted. “1st, June, 1909.—Jury sworn. “2nd, June, 1909.—The jury being unable to agree upon a Verdict Were discharged by the Court. “14th, September, 1909.—Notice from the plaintiffs to the defendant under the 27th rule of court filed. Service admitted. “10th, February, 1910.—Deposition on behalf of the defendant taken before J. F. Milholland, a notary public of Kingston, Jamaica, B. W. I., filed. “6th, October, 1910.—Notice from the plaintiffs to the defendant under the 27th rule of Court filed. Service admitted. “15th, November, 1910.—Jury sworn. “16th, November, 1910,-Verdict in favor of

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