King v. Hicks

Stewaet, J., delivered the opinion of the Court. The action below, in the Court of Common Pleas for the city of Baltimore, was instituted on the 8th of July, 1865, by the appellee, for the recovery of an account alleged to be due by the appellant. — 463 — The plaintiff filed his account, with an affidavit thereon, and a narr., containing the common counts. There were successive unexecuted writs against the defendant, but, under the writ issued the 3d of October, 1865, and returnable to the second Monday of October, 1865, one of the return days, the defendant was returned “ summoned,” but did not appear on that day, and no motion for judgment by default against him was made, and no order whatever taken by the plaintiff on that day, or on any day before the next return day. After sundry return days, and the entire September term of the Court, and nearly the whole of the succeeding January term had transpired, and but a few weeks before the May term, to wit: on the 13th day of April, 1866, the plaintiff made his motion, in writing, for judgment nisi against the defendant; and on that day, judgment by default, for want of appearance by the defendant, was entered. On the 17th day of May, during the May term, the judgment was extended, and, during the same term, on the 9th of June, 1866, the defendant appeared, and moved, in writing, with sundry reasons, to strike out this judgment by default, and the extension thereof, and amongst his reasons, alleged, in his second reason, that the judgment entered against him was irregularly obtained and extended. On the 12th of June, 1866, the defendant also filed his petition, with affidavits, undertaking to show merits, and praying to have the judgment set aside. At the January term, on the 23d of February, 1867, the Court overruled the defendant’s motion, and from this ruling he has appealed. This judgment of the Court below, if unreversed under this appeal, is, to all intents and purposes, final, and concludes the rights of the parties affected thereby. There can be no question of the right of the defendant, according to the law of the land, to take his appeal from such judgment. It is equally clear, that during the term in which judgment is rendered, it is under the control of the Court, and may be stricken out for fraud or irregularity. Code, Art. 75, sec. 38. — 464 — To ensure speedy recovery of demands in the Court of Common Pleas of the city of Baltimore, the Act of 1864, ch. 6, provides summary proceedings, and besides the three stated terms of that Court, in January, May and September, for the return of process and trial of causes, prescribes other return days, at which the same proceedings may be had in the prosecution of writs, as if they were made returnable to the regular term of the Court, and gives to persons instituting suits in that Court, the option to have the writ made returnable to the return day or to the next succeeding term. According to this laiv, if the defendant, being summoned, fails to appear on the return day, judgment for default, on motion of the plaintiff in writing, may be entered against him, which shall be stricken out on his appearance being entered before the first return day thereafter, that is, by the next return day after the one to which the writ was made returnable; and if the defendant fails to appear within this prescribed time, the plaintiff may have his writ of enquiry or final judgment. It seems clear, from the tenor of this Act, that diligence and despatch were its leading intent and policy. For that purpose it prescribes the additional return days, and that when the defendant has been summoned to -appear at any return day, he must appear within the time intervening between that day and the next return day. The plaintiff also must make his motion for judgment by default against the defendant, within the same period. The striking out of the judgment by default, as a matter of course, if the defendant does appear within the prescribed time, occurs within the same interval. If the defendant fails so to appear, the plaintiff, if he has made his motion for default in time, is then, and not before, entitled to his writ of enquiry or final judgment. Mailhouse vs. Inloes, et al., 18 Md., 328. The terms of this law are more imperative than any rule of the Court, and it is manifest, from their purport, that where the defendant does not appear on the return day, and is thus liable to be defaulted, but the plaintiff makes no motion to — 465 — have the default entered during the interval between the first and the next return day, he, in effect, waived the benefit provided by the law for the entry of the judgment by default. This law, prescribing modes of proceeding, unusual, must be strictly pursued, and neither by its letter nor spirit, does it authorize the plaintiff, to have judgment by default entered against the defendant, at any time subsequent to the day prescribed by the law. The plaintiff, if such license were allowed, would, in fact, be permitted to have his judgment by default, and final judgment afterwards, without the allowance of any day to the defendant between the two judgments. The plaintiff, it seems, elected to have the summary process provided by this law, and the writ against the defendant was made returnable to one of the return' days described in the writ, to wit: on the second Monday of October, 1865, and, in obedience to the writ, the sheriff summoned the defendant to appear on that day, and he failed to appear; but, notwithstanding this default of the defendant, the plaintiff quietly slept upon his rights, and made no motion to have judgment by default against the defendant until after that whole term had elapsed, and a large part of the ensuing term, to wit: on the 13th of April, 1866. Parties electing and undertaking to make use of the summary provisions of that law, should be vigilant and strict in pursuing its policy and following the directions specifically prescribed thereby, otherwise they cannot claim its benefits. This law, neither by its letter nor spirit, gives the least countenance to such want of diligence, nor does it authorize the plaintiff to demand this judgment by default against the defendant, and neither the clerk nor the Court was empowered, under its provisions, to enter or order the judgment by default against the defendant, on the plaintiff’s motion, made on the 13th day of April, 1866. Undue and unfair advantage might be taken against an absenting and defaulting defendant, if the plaintiff were per — 466 — mitted, under color of the law, to take his judgment by default at any time it might suit his purposes; but, although the defendant is in default, so is the plaintiff guilty of laches, and the defendant, under such circumstances, is entitled to be protected against any judgment being rendered against him without the sanction of law. The onus is on the plaintiff to show a legal foundation for his judgment by default in such cases. If the plaintiff is vigilant to secure his judgment, although by default, if it is entered according to law, it stands as any other judgment, and will have all the legal intendments in its favor. Assuming, in this case, that the demand of the plaintiff was within the provisions of this law — that the necessary affidavit was made on the part of the plaintiff; that he took the proper steps to institute his action; that the defendant was regularly summoned to appear on the retnrn day, and failing to do so, that he was liable to be defaulted on the motion of the plaintiff; that the plaintiff was entitled to have judgment entered against him for such default, yet, if he failed to make his motion on that day, or before the next return day, for the judgment by default, he has neglected to avail himself of the privilege allowed to him, to have his judgment by default ’ against the defendant, and it would be, not only to the prejudice of the defendant, but without any.sanction from this law, and in disregard of -its express provisions to permit the plaintiff to have such judgment entered, whenever it may suit his inclination or convenience. The plaintiff having, by his own laches, lost the benefit of obtaining the summary judgment by default against the defendant, the cause must now be disposed of by the Court below, as if the suit had been instituted independently of the Act of 1864, ch. 6. The defendant having appeared, has the right to plead in the usual form, without affidavit. — 467 — (Decided 30th May, 1870.) Finding the judgment below to have been improvidently entered, and the allegation in the second reason of the defendant sustained, there is no occasion to make further reference to the other reasons relied upon'by the appellant. Judgment reversed and new trial ordered.