Green v. Hamilton

• Decision Date: 29 June 1860
• Citation: 16 Md. 317
• Parties: JOSEPH D. GREEN v. WILLIAM HAMILTON.
• Court: Maryland Court of Appeals

16 Md. 317

JOSEPH D. GREEN v. WILLIAM HAMILTON.

Court of Appeals of Maryland.

June 29, 1860

In an action of trover judgment by default for want of a plea was entered, and subsequently an inquisition was taken and damages assessed to the plaintiff, and a final judgment rendered thereon, and execution issued which was outstanding. After the lapse of a term, the defendant moved to strike out the final judgment, for fraud, deceit surprise and irregularity, and the court ordered the judgment and inquisition to be struck out, but allowed the judgment by default to stand, with leave to the plaintiff to proceed thereon, and have another inquisition, and from this order the plaintiff appealed. HELD that the appeal lies.

A judgment by default, regularly entered, is as binding as any other, as far as respects the power and jurisdiction of the court in declaring that the plaintiff is entitled to recover though the amount of the recovery, in some cases, remains to be ascertained by a jury.

A finding upon an inquisition has the same dignity and efficacy as a verdict on issues; the defendant may participate in the inquiry at bar, and if he absents himself, he has no better standing in court afterwards than a defendant who has defended the cause.

The fact that the jury, on an inquisition, in an action of trover, assessed more damages than the evidence would warrant, is nothing but a reason for a new trial; it is no ground for striking out the judgment for fraud, deceit surprise or irregularity, under the Act of 1787, ch. 9, sec 6.

Nor is the admission of inadmissible evidence, on an inquisition, ground for striking out the judgment under this Act; if a party allows such evidence to go to the jury, he is bound by the verdict; he must object when the testimony is offered, and the fact of his absence does not vary the principle.

APPEAL from the Superior Court of Baltimore City.

Trover, brought on the 10th of April 1856, by the appellant, against the appellee, to recover damages for an alleged wrongful conversion, by the defendant, of certain goods, consisting of sundry pieces of silks, satins, & c., belonging to the plaintiff. A copy of the declaration, in which the damages were laid at $2000, and a notice of a rule to plead thereto in fifteen days after appearance, were duly served upon the defendant with the writ. The writ was returned at the May term 1856, and the personal appearance of the defendant entered by the court, pursuant to the Act of 1852, ch. 76, sec. 2, and a rule to plead was then entered according to the notice previously given. The case was afterwards continued by successive continuances to January term 1857, when a judgment by default was entered against the defendant for want of a plea, with leave to the plaintiff to have an inquiry of his damages.

Two commissions were then issued to take testimony in Philadelphia, the first, on the 28th of September 1857, to William Ogle, Esq., and the second, on the 23rd of October 1857, to J. Henry Bryan, Esq., of that city. The facts proved under these commissions are substantially these: The plaintiff was a dry-goods merchant in Philadelphia, and the defendant an auctioneer doing business on Pratt street, in Baltimore. On the night of the 8th of March 1855, the plaintiff's store was broken into and robbed, by one Dougherty, of a large quantity of valuable silks and satins, valued, as stated by one of the witnesses at about $1000. Dougherty conveyed the stolen goods to Baltimore and brought them to the defendant's store in carpet bags, and the defendant sold them at auction and accounted for the proceeds to Dougherty. A list of a portion of the goods stolen, made out by the plaintiff, with the current prices annexed, amounting to $533.04, and a list of the defendant's account of sales, showing sales to the amount of $204.66, were filed with the first commission.

On the 14th of December 1857, an inquisition was taken at bar, and the plaintiff's damages assessed at $1000, and final judgment was thereupon rendered, and at the succeeding January term, a writ of fieri facias was issued on this judgment, returnable to the May term 1858, which writ is still outstanding. Afterwards, in May term 1858, the defendant moved the court to strike out the judgment of the 14th of December 1857, " for fraud, deceit, surprise and irregularity in obtaining the same," and as the ground for such motion, alleged in his affidavit:

1st. That the judgment has been entered for $1000, in face of the fact that the plaintiff's own evidence appearing on the record establishes the amount which he can claim of the defendant to be not more than $204.66.

2nd. That the only evidence submitted by the plaintiff to the jury, who found the inquisition, was that contained in the commissions issued to Philadelphia, and that no notice of the asking, or granting, of either of these commissions, was given to the defendant, and no copy or notice of the interrogatories annexed thereto served on him, and that he was not served with any notice to appoint a commissioner, or with the name of any commissioner nominated by the plaintiff, and that the plaintiff, so far as the proceedings disclose, did not nominate either Bryan or Ogle, to whom these commissions were issued, to the Superior court, or the judge, or the clerk thereof, as a commissioner, and that there was no power in the court, or the judge, or the clerk, to issue either of them, and that the court had no power to allow the evidence taken under either to be read to the jury, which was in point of fact read to them and was the only evidence on which they found the inquisition.

The defendant further alleges that certain merchandize was brought to his auction store, in March 1855, by one Dougherty, a stranger to him, and was represented by Dougherty to be his property; that he sold the same at public auction, at Dougherty's request, and paid him the whole proceeds, and at the time defendant received and sold these goods, he believed Dougherty to be the owner, and had no suspicion, or grounds of suspicion, that they were the property of any one else; and that after the sale, a person on behalf of the plaintiff came to defendant's store, and inquired if he had had or sold any such goods, and defendant furnished him with all the information in his possession on the subject, and showed him the account of sales in his books, and that the plaintiff was acquainted with the facts when he instituted this suit and recovered this judgment; that defendant never received of the goods, alleged by the plaintiff to have been his, to a greater extent than what had been sold as aforesaid, for $204.66; and that the plaintiff also knew that the proceeds of such sales had been paid over by the defendant before the institution of this suit, and in ignorance of the alleged property therein of the plaintiff; and the defendant can prove all the facts above mentioned, by competent testimony, if he be allowed an opportunity to do so.

The plaintiff for cause why the judgment should not be stricken out, and for answer to the allegations of the defendant in the premises, filed an answer, verified by affidavit, in which he alleges:

1st. That the defendant has no standing in court to make this motion, because of his laches and delay.

2nd. That the judgment, upon the finding of a jury, cannot be disturbed after the term at which it was given, or, at all events, a power, so doubtful, ought not to be exercised in circumstances like the present, where the defendant has been so remiss and negligent.

3rd. That it is too late now to inquire into the evidence produced to the jury on the inquisition, and whatever objections might have obtained to any evidence then offered, should have been taken at or before the trial, or, at least, within the period thereafter during which the defendant could have moved for a new trial.

4th. Not waiving the preceding grounds, the plaintiff further says, the facts averred in the defendant's affidavit, and upon which his motion is based, are not only immaterial and irrelevant, but are not set forth according to the truth of the case. It is not true, as alleged, that the plaintiff's own evidence, appearing on the record establishes the amount of his claim to be not more than $204.66. The plain facts are, that the plaintiff's store, in Philadelphia, was robbed at night of silks and satins, and other valuable dry goods, to a large amount, by one Dougherty. These goods were traced to the defendant's store, whither they were brought, as the plaintiff has been informed, with the labels and wrappers torn off, packed in part or wholly in carpet bags, and otherwise in such a condition that any man of ordinary intelligence could not well help suspecting something was wrong about them. The defendant received them, sold them, and delivered them to purchasers, and therefore, upon the plainest principles of law, was guilty of a conversion, and liable for the real value to the true owner. The value of the goods so stolen and converted, was far more than the amount for which the defendant says he sold them, and at a moderate estimate at least $1000, the sum that an intelligent jury, upon the evidence before them, pronounced the same to be worth. Touching the commissions, he submits that nothing connected with them can possibly be a ground for striking out the judgment, because they were issued long after the judgment by default, and that judgment cannot be affected by matter subsequent. The inquisition cannot be affected, because the most that can be said against the issuing of the commissions is, that the evidence taken under them might have been objected to. But nothing is clearer than that any objection to evidence ought to be made at the time it is offered. The...