Keen v. Whittongton

Alvey, J., delivered the opinion of the Court. This was an action on an appeal bond. The declaration is in the usual form, assigning the breaches of the condition of the bond. The bond was conditioned for the due transmission of a transcript of the record of the judgment appealed from to the Court of Appeals, within the time prescribed by law; the prosecution of the appeal with effect, and the payment to the plaintiffs in the judgment the amount thereof, “ in case the said judgment should be affirmed” by the Court of Appeals, The breaches assigned were, that the defendants in the judgment never did cause a transcript of the record to be transmitted to the Court of Appeals, and did not prosecute their appeal with effect, hut dismissed the same ; and that they have not paid and satisfied the judgment recovered against them. In the declaration, proferí was made of the bond, and, upon craving of oyer by the defendants, the bond was spread upon the record, and thus became part of the declaration. Step, on Pl., 71. To this declaration the defendants demurred. The grounds of the demurrer appeared to he, 1st, a supposed mistake or variance in the name of the corporation or association; 2nd, the failure to aver that the association was an incorporated body; and, 3rd, the omission to aver that the bond had been duly approved [495] according to law. The demurrer was overruled by the Court below, and we think properly. As to the supposed mistake or variance in the name, the record discloses nothing within the scope of the demurrer from which it could be determined that the real name is different from that used in the bond and declaration. It is not shewn under what law or authority the association was incorporated, and we are not to assume that it has a different name from that by which it was sued, and which it has fully recognized as correct, by the recitals and description of itself, in the bond sued on in this action. It is estopped by such recitals and description of itself from alleging its name to be different from that given. Lloyd vs. Burgess, 4 Gill, 187 ; Hardy vs. Coe, 5 Gill, 189. And as the bond, by the profert and oyer, was made part of the declaration, the defendants are equally concluded as to the second ground of demurrer; that is, as to the failure to aver that the association was an incorporated body; for the bond professes, in terms, to be a corporate act of the association, and is executed under its corporate seal. And as to the last ground of demurrer, that of the omission to aver that the bond had been duly approved, we must, in determining this question on the demurrer, presume that the bond was legally approved. It was certainly executed and filed by the defendants, and though approval was essential to give the bond operation and effect as a stay of execution on the judgment, yet it is but rational to presume that it was approved before it was filed, as otherwise the filing would have been a nugatory act. At any rate, we do not think it necessary to the sufficiency of the declaration that it should contain an express affirmative averment of the approval of the bond. If the bond has not been legally approved, that may be availed of by way of defence. Milburn vs. The State, I Md., 1, 15. The Court below having overruled the demurrer and given judgment of respondeat ouster, the defendant ten [496] dered and filed a plea in bar, verified by affidavit, as required by the practice Act of 1864, chapter 6; and, on the same day, upon motion of the plaintiffs, and notwithstanding the plea filed, judgment was rendered by default, and thereupon an inquisition was forthwith taken by jury. A motion in arrest of judgment was made, founded upon the alleged irregularities of the proceeding. This motion was overruled, and final judgment entered on the inquisition. At the taking of the inquisition, the defendants offered prayers for instruction to the jury, which were refused, and the refusal of these prayers formed the subject of a bill of exception, to be found in the record. The judgment by default non obstante the plea, seems to have been entered upon the supposition that the defendants had lost their opportunity to plead, by allowing the rule day, under the Act of 1864, ch. 6, to poass before the plea was filed. This renders it necessary that we determine whether the Act of 1864 properly applies to the case; for if not, there was error committed in entering the judgment by default, when there was a plea in bar on file in the cause, of which no disposition had been made. The Act of 1864, ch. 6, was intended to expedite the recovery of judgments in the Courts in the city of Baltimore in certain cases, and, by its terms, is applicable to suits where the cause of action is a contract, either express or implied, and where the plaintiff shall file with his declaration an affidavit, stating the true amount that the defendant is indebted to him, over and above all discounts, and also file the bond, bill of exchange, promissory note, or other writing or account by which the defendant is so indebted. The plaintiffs in this case filed with their declaration an affidavit, stating the amount claimed to be due. on the appeal bond, and assumed the bond to be liable for the sum recovered by the judgment recited therein, with interest and costs. The cause of action, to be within the reason and purview of the Act, must be of a character to afford of itself [497] a certain measure or standard for determining the amount recoverable, for otherwise the true amount of indebtedness could not he averred or verified by the affidavit. Hence bonds, with collateral conditions, not for the payment of any certain sum of money, and where the recovery thereon must he as for unliquidated damages, will not constitute a cause of action within the statute referred to. This is the rule as applied to proceedings under the attachment law, and the same construction has been adopted in reference to actions under the Act of 1864, the language of the latter Act being substantially the same as that of the attachment law. State, use of Bouldin, vs. Steibel, 31 Md., 34. The question then is, whether the sum recoverable on the appeal bond, under the facts disclosed in this case, is of such certain liquidated nature as enabled the plaintiffs to mate their affidavit of the true amount of the indebtedness sued for. This can only be determined by the terms of the condition of the bond, the contract, of the parties. The appeal was not prosecuted with effect, hut was dismissed by the appellants, as shown by the declaration. The conditions of the bond were, as before stated, that a transcript of the record should be transmitted to the Court of Appeals within the time prescribed by law ;• that the appeal should be prosecuted with effect, and that the appellants should satisfy and pay the judgment appealed from, in case that judgment should be affirmed,. It was then only in case of the affirmance of the judgment by the Court of Appeals, that such judgment would evidence the true amount, as an ascertained sum, for which recovery could be had on the appeal bond. If the appeal had been prosecuted and the judgment affirmed, there could he no doubt of the right of the plaintiffs in the judgment, in an action on the appeal bond, to recover as liquidated damages, tire amount of the judgment, with interest and costs. That, by the terms of the contract, was the amount stipulated to be paid in the event of the affirmance of the judg [498] ment. But where, as in this case, the appeal has not heen prosecuted, and, consequently, the judgment has never heen affirmed, the rule of damages and the extent of recovery would depend upon the loss and injury sustained hy reason of the stay of execution on the judgment appealed from. It is therefore only in the event of the affirmance of the judgment, where the aqipeal is taken from a judgment in personam, and not in rem, like the cases of Wood vs. Fulton, 2 H. & G., 78, and Jenkins vs. Hay, 28 Md., 547, that the aqipeal bond, in the form of the one before us, would afford a cause of action for. a liquidated or ascertained sum, such as a party could verify in his affidavit; and as no affidavit for any fixed or definite sum could properly be made in this case, with reference to the bond sued on, it follows that the action was not within the provisions of the Act of 1864, ch. 6. (Decided 24th June, 1874.) It results from this conclusion that there was error in entering the judgment by default and taking the inquisition under the statute; and .that, therefore, the judgment must be reversed, and a new trial awarded. Judgment reversed, and new trial awarded.