Knickerbocker Life Ins. Co. of New York v. Hoeske

• Decision Date: 10 March 1870
• Citation: 32 Md. 317
• Parties: THE KNICKER BOCKER LIFE INSURANCE COMPANY OF NEW YORK v. THERESA HOESKE.
• Court: Maryland Court of Appeals

32 Md. 317

THE KNICKER BOCKER LIFE INSURANCE COMPANY OF NEW YORK v. THERESA HOESKE.

Court of Appeals of Maryland

March 10, 1870

APPEAL from the Court of Common Pleas.

This action was brought by the appellee against the appellant to recover the sum of $2,000, claimed to be due to the former upon a policy of insurance, which had been issued to her by the latter, upon the life of her deceased husband, Henry Hoeske. The defendant pleaded, "never was indebted as alleged," "did not undertake and covenant as alleged," and non-performance of conditions, &c., by the plaintiff's intestate. To these pleas was appended the following affidavit:

"On this 7th day of January, A. D., 1869, before me, the subscriber, a Justice of the Peace of the State of Maryland, in and for the City of Baltimore, personally appeared the above named defendant, and made oath in due form of law, that it is verily believed that sufficient evidence will be furnished at the trial of the said cause to support the same.

GEORGE F. THOMPSON, J. P."

Other facts in the case, needful to an understanding of the principles decided, will be found in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, BRENT, GRASON MILLER ALVEY and ROBINSON, J.

Sylvester L. Stockbridge and Henry Stockbridge, for the appellant.

The claim sued on in this case is not one designed to be embraced in the provisions of the 6th section of the Act of 1864 chapter 6. Though the language there used is broad, yet the whole tenor of the Act shows that it was not designed to include claims for damages for breach of contract, nor claims arising out of contracts with conditions precedent, the performance of which by the plaintiff, was an essential prerequisite to his right to recover.

It was meant to cover only clear obligations to pay money, the amount of which was definitely ascertained by the terms of the contract, and not dependent upon the performance of conditions by the plaintiff. Act of 1864 ch. 175; Act of 1864, ch. 6, sec. 6.

The Act of 1864, ch. 6, in so far as it is in derogation of natural and common law rights, must be construed strictly in favor of those against whom it is to operate, in other words, the plaintiff is not entitled to ask a judgment by default, for want of affidavit to the defendant's pleas, unless he has complied strictly with the requirements of the Statute, nor then, if there has been a substantial compliance on the part of the defendant. The purpose of the Act was merely to give prompt justice in case of undisputed claims; it was not designed to deprive defendants of their rights on the most shadowy technicalities. It required defendants to file a plea containing a good defence, and to present a prima facie case by an affidavit that the plea was true, and would be sustained by sufficient evidence to support it. All this the defendant did. Act of 1864, ch. 6, sec. 7; Mailhouse vs. Inloes, et al., 18 Md., 328; Act of 1858, ch. 323.

The Court erred in refusing to grant the prayer of the defendant for leave to amend its pleas and affidavit, for it was apparent to the Court that the appearance of the defendant had been duly entered in the cause, that pleas containing a good defence had been duly filed therein, with an affidavit annexed to them, that at least there had been an attempt on the part of the defendant to comply with the terms of the law, and that the said form of affidavit was a part and parcel of the " proceedings in the cause," which the defendant had the full and clear right under the law to amend. Code of Public General Laws, Art. 75, sec. 23; Baltimore Fire Ins. Co. vs. McGowan, 16 Md., 53; Garrett vs. Dickerson, 19 Md., 418; Evans' Practice, 150 and 79.

The Court erred in refusing the prayer of the defendant for a trial by jury of the question of the amount of damages to be assessed to the plaintiff against the defendant, for there was no default by the defendant for want of appearance, or for the not filing its pleas in due time, but on the contrary the defendant was present in Court, and was ready and able to defend its rights in the premises whenever the Court should empanel a jury of inquisition to determine the amount of damages. Constitution of Md., Art. 15, sec. 6.

Albert Ritchie, for the appellee.

The plaintiff was entitled to a judgment, because the defendant's pleas were not properly verified. There was no affidavit thereto, made either by the defendant or any one in its behalf. The magistrate certified to a simple impossibility. Though he himself cannot impeach his own certificate, yet its statements may be shown to be false by other testimony. Mathews & Zollickoffer vs. Dare & McClure, 20 Md., 271; Central Bank of Frederick vs. Copeland, 18 Md., 318.

Of the falsity of this certificate there can be no better evidence than appears upon its examination, it being simply impossible for a corporation to put in a personal appearance and make an affidavit.

It being impossible that the defendant could have made the affidavit, the certificate must be taken as false. And it no where appearing that anybody undertook to make it on behalf of the defendant, there is no affidavit that the pleas are true, and they must be regarded as filed without an affidavit. It is impossible for a corporation to personally appear and make affidavit. Angel and Ames on Corporations, sections 276, 369, 665; Planters' and Marine Bank vs. Andrews, 8 Porter, 423; Trenton Bank vs. Haverstick, 6 Halsted, 171.

The Act of 1864, ch. 6, strikes at all defences not bona fide. It requires an oath that the defence is true; and not only that it shall be true, but that it shall not be an idly made defence. It must be both true and made in good faith, with a reasonable probability of its being established. Therefore, the defendant must pledge his belief on oath, that he will be able to produce sufficient evidence to sustain his defence at the trial. If the affidavit fail in giving this assurance, it is defective.

In order thoroughly to discountenance evasive and procrastinating defences, the Act requires some assurance, first, that the pleas are true; second, that there is evidence to sustain them; and third, that it is within the defendant's ability to produce such evidence. If the affidavit fail in any one of these points, the plaintiff is entitled to judgment.

Where the terms of an affidavit are prescribed by Statute, they must be strictly followed, and, therefore, the affidavit in this case is insufficient. Thompson vs. Towson, 1 H. & McH., 504; Dyson vs. West, 1 H. & J., 567; Didier vs. Kerr, 12 G. & J., 499; Denton vs. Griffith, 17 Md., 301; Dean vs. Oppenheimer, 25 Md., 377.

The defendant could not amend its affidavit, as it prayed leave to do on January 30th, after the second return day (January 11th) had passed, and after the plaintiff had moved for judgment.

If the defendant could avoid the judgment after that return day, by amending an insufficient affidavit, he could equally cure the default of having put in no affidavit at all.

The Court had authority to assess the damages and extend the judgment. Mailhouse vs. Inloes, 18 Md., 328; Greff, et al. vs. Fickey, et al., 30 Md., 75.

BARTOL C.J., delivered the opinion of the Court.

The amount claimed in this suit by the appellee, is a liquidated sum, fixed by the contract, upon which the action was brought. The case, therefore, is clearly within the provisions of the Act of 1864, ch. 6. Upon a claim of this nature, there can be no difficulty in stating the account and verifying the same by affidavit. It is not like the case of Smithson & Owens vs. The Telegraph Co., 29 Md., 162, in which it was held the claim was, in its nature, one for unliquidated damages not fixed by the contract, nor did the contract furnish any certain standard by which the amount of the plaintiff's claim could be certainly ascertained. In this case, if the plaintiff has a right of action, the sum she is entitled to recover is fixed or may be ascertained by the terms of the contract.

The contingencies upon which her right of action depends, have no relation to the question of the nature and amount of indebtedness, if any exists; that is fixed and definite, and is, in no sense, in the nature of unliquidated damages.

At the time the suit was brought, there was filed with the declaration an account of the defendant's indebtedness verified by affidavit, in accordance with the eighth section of the Act of 1864, and the policy of insurance was filed therewith as a voucher, and referred to in the account. The policy, as copied in the record, does not appear to be signed by the president and secretary of the company,...