Adler v. Crook

• Decision Date: 15 March 1888
• Citation: 13 A. 153,68 Md. 494
• Parties: ADLER v. CROOK ET AL.
• Court: Maryland Court of Appeals

13 A. 153

68 Md. 494

ADLER v. CROOK ET AL.

Court of Appeals of Maryland

March 15, 1888

Appeal from superior court of Baltimore city.

Assumpsit upon a promissory note by Crook, Horner & Co. against Elias E. Adler. Judgment for plaintiffs. Defendant appeals.

Charles J. Wiener, for appellant.

Charles E. Wilcox, for appellees.

STONE J.

This is an appeal from a pro forma judgment of the superior court of Baltimore city. The only question presented to us on the appeal is the proper construction of section 170 of the act of 1886, c. 184, relating to the practice in Baltimore city. Crook, Horner & Co. brought an action of assumpsit against Adler upon a promissory note, and made the affidavit required by section 171 of the act of 1886, c. 184. Adler, the defendant, pleaded that he never promised as alleged, and that he never was indebted as alleged, and to these two pleas he made the affidavit that they were true to the best of his knowledge and belief; and that he believed he would be able to maintain them at the trial; and that he had been advised by counsel to make that affidavit. He also filed a certificate from his counsel that he (the counsel) had advised the filing of the pleas and affidavit. The exception states "Thereupon issues were joined, and said cases stood ready for trial. Thereafter the plaintiffs, by their attorney, moved for judgments by default for want of a sufficient affidavit of defense, upon the ground that said affidavits failed to set forth the amount of said claims admitted and the amount disputed, or that all of said claims were disputed, and upon said motion, and without notice to the defendant or his counsel, judgments by default were entered therein as prayed." It appears from this exception that the court below decided pro forma that, in addition to the pleas filed and to which affidavit had been duly made, it was necessary for the defendant to swear that he disputed the whole of the plaintiffs' claim, if the whole was disputed, or to specify what part was disputed and what admitted in part, if part only was disputed. The 170th section, after providing that judgment may be entered at any time after 15 days from the return-day to which the defendant was summoned, goes on to say: "Although the defendant may have pleaded, unless such plea contains a good defense, and unless the defendant, or some one in his behalf, shall, under oath or affirmation, state that every plea so pleaded by the defendant is true, and shall further state the amount of the plaintiff's demand, if anything, admitted to be due or owing, and the amount disputed; and, further, that the affiant verily believes the defendant will be able at the trial of the cause to produce sufficient evidence to support said plea as to the portion disputed," etc. This section is amendatory of the act of 1864, and the principal addition it makes to that act is the provision that the defendant "shall further state the amount of the plaintiffs' demand, if anything, admitted to be due or owing, and the amount disputed." It is apparent that under the act of 1864, if the defendant had a valid defense to a part of plaintiff's claim, (if the action was assumpsit,) that he would plead the general issue,...