Div. Of Armour & Co. Of Del. v. Brown., 16.

• Decision Date: 28 November 1945
• Docket Number: No. 16.,16.
• Citation: 44 A.2d 753
• Parties: ARMOUR FERTILIZER WORKS, DIVISION OF ARMOUR & CO. OF DELAWARE v. BROWN.
• Court: Maryland Court of Appeals

44 A.2d 753

ARMOUR FERTILIZER WORKS, DIVISION OF ARMOUR & CO. OF DELAWARE

v.BROWN.

No. 16.

Court of Appeals of Maryland.

Nov. 28, 1945.

Appeal from Court of Common Pleas of Baltimore City; Eugene O'Dunne, Judge.

Action in assumpsit on a note by Armour Fertilizer Works, Division of Armour & Company of Delaware, against J. D. Brown. From an order striking out a judgment by default against defendant, plaintiff appeals.

Appeal dismissed and case remanded.

Joseph H. Colvin, of Baltimore, for appellant.

J. Henry Ditto, of Baltimore (Cary D. Hall, Jr., of Baltimore, on the brief), for appellee.

Before DELAPLAINE, COLLINS, GRASON, and HENDERSON, JJ.

COLLINS, Judge.

On August 23, 1943, the Armour Fertilizer Works, plaintiff, appellant here, filed a declaration in the Court of Common Pleas of Baltimore City in assumpsit against J. D. Brown, defendant and appellee here. ‘For money payable by the defendant to the plaintiff. For that the defendant, by his promissory note dated June 5, 1930, promised to pay R. E. Baldwin the sum of $1100 twelve months after date, with interest at the rate of 8% per annum until paid, and the said note was endorsed and duly negotiated to the plaintiff by the payee thereof, R. E. Baldwin, and the defendant has not paid any part of the principal of the said note and has failed to pay the interest thereon in the aggregate amount of $936.23. And the plaintiff claims $2500.00.’ The defendant was summoned, and failing to answer, on November 12, 1943, a motion for judgment by default for want of a plea was made by the plaintiff. From the argument it appears that an order of Court was passed granting the judgment by default. No such order appears in the record, and the docket entry simply states, ‘Order of Court thereon filed.’ The plaintiff asked for a hearing on inquisition.

The defendant, after personal service of notice directed by the Court, appeared at the inquisition hearing held on January 4, 1945, not represented by an attorney and claimed that he was a resident of Florida and could not be sued in this State and made a motion that the case be dismissed. The Court overruled the motion and made the following statement: ‘The defendant Brown, being without counsel, and claiming to have a meritorious defense to the cause of action, I strike out the judgment by default and ask the clerk to enter a docket entry short of general issue plea and a plea of limitations. Now, we will take the testimony of the defendant Brown.’ The appeal to this Court is from the action of the trial Court in striking out this judgment by default. The attorney for the plaintiff claims that the trial judge then forced him into the trial of the case on its merits. Although it certainly appears that the trial judge acted in a very peremptory manner in calling the case for trial on its merits at that time, as the attorney for the plaintiff, according to the record, made no objection to this procedure there is nothing before this Court on that question.

Brown was then examined by the Court as to the merits of his case and the defense of the claim, and cross examined by plaintiff's attorney as to the merits of his defense, as to the place of his residence, why he did not file a plea to the declaration, whether he made any payments on the note, the consideration for which the note was given, why he signed the note with another co-signer, whether the signing of the note constituted a joint venture between the defendant and the other signer, whether the divided the profits, whether there was any understanding that the profits would be divided with the co-signer of the note, and what understanding the co-signer had at the time the defendant quit the venture. He was also asked whether he had received any release or discharge from the note and other pertinent questions that pertained to the matters of defense in the case. The Court asked the attorney for plaintiff if there was anything else he wanted to ask or any other witnesses. The attorney said, ‘No sir, no other witnesses except the deposition which is before you, sir. I would like to have that incorporated in the testimony.’ As a result of this hearing on the merits, the Court entered a judgment for the defendant for costs.

The plaintiff on January 6, 1945, filed a motion asking that the judgment entered by the Court for the defendant for costs on January 4, 1945, be stricken out, that the order, striking out the judgment by default, on January 4, 1945 be vacated and annulled, and that the plea of limitations entered short by the Court be stricken out. The Court granted the motion to strike out the judgment for the defendant for costs and granted leave to further plead. Plaintiff then filed on January 10, 1945, a demand for particulars of the general issue plea filed by the defendant in which demand were contained the following words: ‘without waiving its rights and reserving unto itself its right of appeal from the Court's Order of January 4, 1945, striking out the judgment by default against the defendant, entered on November 12, 1943.’ On January 17, 1945, a suggestion for removal was filed by the plaintiff. On January 26, 1945, the defendant filed the general issue pleas and plea of limitations in writing. On the same date, complying with plaintiff's demand, the defendant filed particulars of his general issue pleas. On January 30, 1945, plaintiff demurred to the particulars of the general issue pleas and in the demurrer stated, ‘reserving to itself the right of appeal on the action of the Court heretofore taken.’ On the same date the demurrer was overruled, and plaintiff's motion Ne Recipiatur as to defendant's plea of limitations was overruled. On January 30, 1945, plaintiff then filed a notice to take a further deposition. On February 23, 1945, plaintiff filed another suggestion of removal. Whereupon the case was set for trial before another trial judge.

On March 2, 1945, the plaintiff then appealed to this Court from the Order of the Court of Common Pleas of Baltimore City dated January 4, 1945, striking out the judgment by default previously entered on November 12, 1943, in favor of the plaintiff. The single question, therefore, before us is whether the Court was correct in striking out the judgment by default in favor of the plaintiff entered on November 12, 1943, and if said judgment should not have been stricken out, whether the plaintiff waived his right to appeal from that order by his subsequent proceedings in this case.

It has been stated many times by this Court that where the application to strike out...