Laubheimer v. Naill

• Decision Date: 29 June 1898
• Citation: 88 Md. 174,40 A. 888
• Parties: LAUBHEIMER v. NAILL.
• Court: Maryland Court of Appeals

40 A. 888

88 Md. 174

LAUBHEIMER

v. NAILL.

Court of Appeals of Maryland.

June 29, 1898.

Appeal from court of common pleas. Action by John M. Naill against William Laubheimer to recover on an open account and a promissory note. From judgment for plaintiff, defendant appeals. Reversed.

Argued before McSHERRY, C. J., and BRYAN, FOWLER, BRISCOE, BOYD, ROBERTS, and PEARCE, JJ.

Jas. P. Gorter, for appellant.

Frank Gosnell, for appellee.

PEARCE, J. This suit was instituted by the appellee in the court of common pleas of Baltimore city, and the narr. was filed under sections 167, 168, art. 4, Local Code Baltimore City (known as the "Rule Day Act"), as amended by chapter 173, Laws 1894. The narr. contained the common counts and a count upon a promissory note for $200, which note was filed, and annexed thereto was an affidavit of the plaintiff that there was "justly due and owing by the defendant to the plaintiff, on the annexed promissory note [the cause of action in said cause], the sum of $200, with interest from January 20, 1893, over and above all discounts." The defendant appeared, and pleaded (1) that he never was indebted as alleged; (2) that he did not promise as alleged; and appended to these pleas his affidavit "that every plea so pleaded is true, and that he admits $59 of the plaintiff's claim to be due and owing, and $141 is disputed," etc. The sum thus admitted to be due was below the jurisdiction of the court, but the plaintiff, instead of taking judgment, as he might have done, for the amount so admitted, and joining issue as to the disputed portion, joined issue generally on the defendant's pleas, and the case proceeded to trial in regular course. The plaintiff offered one prayer which was rejected, and the defendant offered five prayers which were rejected, and the court gave no instructions to the jury. The defendant excepted to the rejection of his prayers, and the jury rendered a verdict for the plaintiff for $260, on which the judgment was entered, from which this appeal is taken.

Before considering the prayers, it will be necessary to consider the purpose and effect of the "Rule Day Act," and to determine, in view of what was done under that act and what was done outside of it, how far this case is controlled by it. An examination of this act makes it clear that its purpose was to provide a summary method of obtaining Judgment upon admittedly just claims, and, to accomplish this purpose, both plaintiff and defendant are required, before the case is brought to trial, to present their respective contentions under oath, and thus to eliminate from the matters to be put to formal issue everything claimed in the plaintiff's affidavit, and not disputed in the defendant's affidavit. The effect of full and fair compliance with these requirements entitles the plaintiff, on motion in writing, after 15 days from the return day, to judgment for what is conceded by defendant, and to proceed forthwith to trial as to what is disputed. As is said in Adler v. Crook, 68 Md. 497, 13 Atl. 154: "The object of these acts is the speedy collection of debts in Baltimore city, and we see no difficulty in applying them in practice. They do not change or affect the rules of pleading. All that this act requires is that, in addition to the plea, defendant must state specifically to what part of the plaintiff's claim his plea applies. If to the whole, he must so state; and if to part, he must state what part. The affidavit only narrows the scope of the plea to the precise point in issue." The plaintiff is not entitled to judgment, unless at the time of action brought he files an affidavit stating the true amount the defendant is indebted to him over and above all discounts, and also files the bond, promissory note, or other writing or account by which the defendant is so indebted; or, if the action is founded upon a verbal or implied contract, unless he files a statement of the particulars of the defendant's indebtedness thereunder. This being a statutory proceeding, no remedy can be had thereunder without a strict compliance with its provisions, and it is plain, from the language of the act, (1) that no judgment can be had under it, upon any cause of action not verified by proper affidavit; and (2) that, when any cause of action is so verified, the defendant cannot defeat judgment, as to the whole or any part thereof, unless his plea states what part of the plaintiff's claim is admitted and what part is denied, and is verified by proper affidavit; or, as expressed in Adler v. Crook, supra: "The object of the act is, in cases to which it applies, to obtain from both plaintiff and defendant a definite and sworn statement of both the claim and defense, if any, so that the parties may know exactly where they differ, and shape their action accordingly." It follows, therefore, in this case, that the remedy and procedure under this act is available only as to the cause of action which was verified by affidavit,—the promissory note,—and that the defendant, so far as that act is concerned, was only required to verify his plea in respect to the verified cause of action. We think it is manifest, also, that the experienced and able attorney of the plaintiff, when he filed the narr. with the note and affidavit, understood the note to be the sole cause of action; otherwise he would have filed the open account, together with the note and the alleged credits on the account, and would have required the plaintiff to verify the account as well as the note, and the defendant to verify his plea as to the note and account; and we think it is equally manifest that, when defendant verified his plea, he understood, as he had a right to do, that he was called on only to defend against the promissory note which plaintiff set forth in his affidavit as the sole cause of action. Had the plaintiff desired to avail himself at the trial of the rule day act he should have taken judgment, on motion in writing, for the $59 admitted by the plea, and joined issue on the $141 which was disputed, and the execution of the judgment or judgments obtained would have been a matter of procedure under that act. But, instead of doing this, he joined issue on the defendant's pleas as filed, not as narrowed in their scope by the affidavit; and in...