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 detime, even though defendant has since requested fendant has failed to plead within the required leave to plead.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 180-197; Dec. Dig. § 106.*] 2. APPEAL AND ERROR (§ 679*)- RECORDQUESTIONS 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 judgtime for pleading, cannot be reviewed on apment, may, upon good cause shown, extend the peal, where the record does not show what excuse was offered for delay.

Error, Cent. Dig. §§ 2878-2879; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 679.*]

3. JUDGMENT (8 652*) - 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 contractual action establishes the liability of de

In the case of Gemmell v. 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 no 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

[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 entitled. 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 amendment, 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. was probably by reason of the existence of

Md.)

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.

385

fendant to defeat the action, is defective, and is properly refused.

Dig. §§ 613-623; Dec. Dig. § 253.*] [Ed. Note.-For other cases, see Trial, Cent.

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.

Dig. 88 564, 565; Dec. Dig. § 243.*] Dig. §§ 564, 565; Dec. Dig. § 243.*] 7. APPEAL AND ERROR (§ 179*)-INSTRUCTIONS

[Ed. Note.-For other cases, see Trial, Cent.

-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

(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 Error, Cent. Dig. §§ 1018-1034; Dec. Dig. § 169.*]

2. APPEAL AND ERROR (§ 919*)-REVIEWPRESUMPTIONS 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 DE

FENSES.

An instruction requested by plaintiff, which excludes from the consideration of the jury the evidence and defenses relied upon by the de

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.*1

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 of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*]

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, JJ.

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