Mailhouse v. Inloes

Decision Date04 June 1862
Citation18 Md. 328
CourtMaryland Court of Appeals

A plaintiff in the courts in Baltimore city, may, under the Act of 1858, ch 323, obtain judgment by default on an open account, verified by affidavit, as required by that Act, at the term, or on the rule-day to which the defendant was summoned and failed to appear, but the court cannot, at the same term, extend such judgment by assessment of damages and costs.

The plaintiff, in such a case, is entitled to a final judgment only in case the defendant fails to appear before the first day of the term, or rule-day next thereafter, and then the judgment can go only for the amount of the account thus authenticated: the court has no power to allow interest on the account, which must be ascertained by a jury, on a writ of inquiry.

Though the judgment will be stricken out because improperly and prematurely extended, and because interest was allowed by the court, yet, the judgment by default, for the defendant's failure to appear, will not be disturbed.

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 the plaintiff's right to recover though the amount of the recovery, in some cases, remains to be ascertained by a jury.

APPEAL from the Superior Court of Baltimore City.

Appeal from an order, overruling motion of appellant to strike out a judgment, by default, entered against him at suit of the appellees. The facts are stated in the opinion of this court. The reasons for the motion, in substance, are:--

1st. That the cause of action being an open account for goods sold and delivered, there was no power to extend the judgment as the court did, but the plaintiffs were required to have a writ of inquiry, and their claim and damages assessed by an inquisition.

2nd. That for the same cause of action the plaintiffs sued defendant, August 28th, 1858, and he applied for the benefit of the insolvent laws, September 4th, 1858, and obtained his final discharge, January 3rd, 1859; that he employed counsel in the first suit, which was discontinued and entered off September 5th, 1858, and, as he now for the first time learns, this suit was brought October 6th, 1858, as he believes for the purpose of taking undue advantage of, and deceiving and defrauding him; that he thought the summons related to the original suit and therefore paid no attention to it, and thus an absolute judgment was rendered against him by default, without his knowledge or opportunity of defence that he has made no new promise since his application, as the plaintiffs well knew, and therefore, are entitled only to a judgment subject to his discharge.

The plaintiffs answered this motion at length, denying all manner of fraud in the institution and prosecution of the suit and in obtaining the judgment, and insisting that the court had full power, under the Act of 1858, ch. 323, to enter the same as it did. The motion was overruled by the court, (LEE, J.,) and the defendant appealed.

The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.

B. F. Horwitz, for the appellant.

1st. The court had no jurisdiction to enter this judgment under the Act of 1858, ch. 323. Secs. 7, 8 and 9, of that Act, refer exclusively to cases where an appearance has been entered, and therefore do not apply to this case. It can only come within sec. 6, which expressly provides for a writ of inquiry. This Act being in derogation of the course of the common law, must be construed strictly; --it must appear affirmatively upon the face of the statute, that the court had the power to enter such a judgment. Sedgwick on Stat. Law, 318. 9 Law Lib., 43. 8 Md. Rep., 25, Warner vs. Fowler. 13 Pick., 284, Wilbur vs. Crane.

2nd. The judgment was irregularly entered. The court had no power to enter a final judgment in the way in which, and at the time when, this judgment was entered, and it is, therefore, absolutely void. There should have been a writ of inquiry to ascertain the damages. Act of 1794, ch. 46, sec. 2. Ev. Pr., 335 to 337. 4 H. & J., 312, Patrick vs. Ridgaway. 5 H. & J., 1, Wilmer vs. Harris. The writ was issued November 1858, and returnable in 1859, and yet the judgment is rendered in 1858. Again, a suit was instituted on the same cause of action, which was entered off. The judgment also includes interest, which was not warranted by the affidavit, and which the court had no power to allow, because interest is but damages, and the jury may or may not give it, as they please. 7 H. & J., 213, Barger vs. Collins.

3rd. The judgment was obtained through fraud, deceit and irregularity, on the part of the plaintiffs, and was a surprise on the defendant, and ought to be set aside for those reasons. Act of 1787, ch. 9, sec. 6. 9 Gill, 146, Hall vs. Sewell.

P. M'Laughlin, for the appellee.

If the court had power to extend the judgment, the defendant has no cause of complaint. That it had such power is very clear. The court would have had the power to make a rule to the effect, that judgments should be entered upon open accounts, where the amount is fixed and ascertained, as well as in cases of notes and bonds. But the question is not open under the Act of 1858, ch. 323. None of the reasons alleged for opening this judgment, are tenable, and there is nothing disclosed in the record which would have justified the court in disturbing it. The defendant must show, that his title to relief is unmixed with any gross misconduct or negligence of himself or his agents. 12 Md. Rep., 415, Keighler, et al., vs. Savage Manf. Co. 6 G. & J., 309, Gott vs. Carr.



It appears from the record in this case, that the appellees instituted an action in the Superior court of Baltimore city against the appellant, on the 6th day of October 1858, on an...

To continue reading

Request your trial
6 cases
  • Murray v. Hurst
    • United States
    • Maryland Court of Appeals
    • November 30, 1932
    ... ... fraud, deceit, surprise, or irregularity. Green v ... Hamilton, 16 Md. 329, 77 Am. Dec. 295; Mailhouse v ... Inloes, 18 Md. 328, 333; Henderson & Ross v ... Gibson, 19 Md. 234, 238; Heffner v. Lynch, 21 ... Md. 552, 556; Hall v. Holmes, 30 Md ... ...
  • Walsh v. State, to Use of Walsh
    • United States
    • Maryland Court of Appeals
    • April 1, 1880 as binding as any other judgment. Cooper v. Roche, 36 Md. 566; Stansbury v. Keady, 29 Md. 368; Green v. Hamilton, 16 Md. 317; Mailhouse v. Inloes, 18 Md. 328. judgment is not here for review upon this appeal, and this court cannot go behind it to examine into and determine upon the corre......
  • Stigers v. Brent
    • United States
    • Maryland Court of Appeals
    • January 24, 1879
    ...are parties interested, they are concluded by the judgment. Townsend v. Summers, 31 Md. 247; Andrews v. Devries, 26 Md. 223; Mailhouse v. Inloes, 18 Md. 328; McKenzie v. R. Co., 28 Md. 161. The question of lunacy has nothing to do with the interference of the court in this case. If there be......
  • Fells Point Sav. Inst. v. Weedon
    • United States
    • Maryland Court of Appeals
    • June 4, 1862
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT