State ex rel. Bouldin v. Steibel

Miller, J., delivered the opinion of the Court. The motion to dismiss is overruled. No appeal lies from an order striking out a judgment tendered at the same term, but in this case the order struck out not only the final judgment extending the judgment by default, but the latter judgment also which was rendered at the preceding term. In such case an appeal lies, but brings up for review only the action of the Court in striking out the judgment by default. The suit was instituted upon a guardian’s bond, and judgment by default rendered under the 5th section of [37] the Act of 1864, ch. 6. By the 8th section of this law, the plaintiff is not entitled to judgment under either of the three preceding sections, unless at the time of bringing his action he shall file with his declaration an affidavit or affirmation stating the true amount that the defendant is indebted to him over and above all discounts, and shall also file the bond, bill of exchange, promissory note, or other writing or account by which the defendant is so indebted. This provision is substantially the same as that of the attachment law in section 4, Article 10 of the Code. It is not fully settled by the decisions upon what claims an attachment may issue, but where unliquidated damages, resulting from the violation of a contract, are claimed, the general rule is they cannot be secured by attachment unless the contract itself affords a certain measure or standard for determining the amount of the damages, because in such ease the true amount of indebtedness cannot be averred by the affidavit. Warwick vs. Chase, Garn. of Le Breton & Co., 23 Md., 154; Goldsborough vs. Orr, 8 Wheat., 227. Where the claim is upon a bond with collateral condition for the faithful performance of official duty, it has been the settled law of this State that no attachment will lie either under the 4th, or 25th sections of Article 10 of the Code. State, use of Beall vs. Beall, 3 H. & McH., 347; Hepburn’s case, 3 Bland, 119. In our opinion the same construction must be given to the Act of 1864, ch. 6. Upon a careful consideration of all its provisions, we are fully satisfied that suits upon bonds like the present with collateral condition, on which sureties are made responsible only for default of their principal in discharge of official duty, are not within either the letter or spirit of this Act. (Decided 16th June, 1869.) For this, and without considering the other reasons relied on, we affirm the order striking out the judgment by default. Order affirmed.