McAllister v. Eichengreen

• Decision Date: 15 February 1871
• Citation: 34 Md. 54
• Parties: ROBERT A. MCALLISTER v. MOSES EICHENGREEN and ISAAC WHITEHILL.
• Court: Maryland Court of Appeals

34 Md. 54

ROBERT A. MCALLISTER v. MOSES EICHENGREEN and ISAAC WHITEHILL.

Court of Appeals of Maryland

February 15, 1871

APPEAL from the Court of Common Pleas.

The appellees sued out an attachment against Moses Colman and _____ Colman, and it was levied upon their goods; they thereupon, for the purpose of dissolving the attachment, gave a bond, the condition of which was to satisfy any judgment that might be recovered against them. The attachment case was then proceeded with and a judgment in favor of the plaintiffs was obtained. Suit was then instituted by them on the bond under the provisions of the Act of 1864, ch. 6; they filed with their declaration a copy of the bond, certified under the seal of the Court, and a short copy of the judgment certified by the clerk, together with an affidavit of the true amount that the defendants were indebted to them. The appellant, one of the sureties on the bond, appeared and filed his pleas, which were not verified by affidavit. The Court accordingly, on the 11th of April, 1870, being the April Rule Day, upon motion of the appellees, entered judgment by default against the appellant, for want of pleas verified by affidavit, and on the same day the judgment was extended. Subsequently, at the same term, the defendant filed a motion to strike out the judgment against him, for the reasons therein stated; the Court overruled the motion and the defendant appealed.

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

William Rowland and Jos. P. Merryman, for the appellant.

Thos. J. Morris and Ed. Otis Hinkley, for the appellees.

BRENT J., delivered the opinion of the Court.

The principal question presented in this case is, whether the cause of action relied upon in the declaration, is such a one as authorized the appellees to proceed under the provisions of the Act of 1864, ch. 6. The construction of that Act in this particular has been presented in several cases that have been recently before this Court,--and it may now be considered as well settled, that suits for the recovery of damages that are liquidated, or for such ascertained amounts as "the plaintiff can properly and safely swear the defendant owes him," are within its terms. It does not include actions for the recovery of unliquidated damages, but if the declaration discloses a cause of action, by which the amount claimed is certain and liquidated, the plaintiff has a right to proceed under its provisions for the recovery of his debt. Smithson vs. U.S. Telegraph Co., 29 Md., 162; Jones vs. Freeman, 29 Md., 273; Bouldin vs. Steibel, 31 Md., 34; Knickerbocker Life Ins. Co. vs Hoeske, 32 Md., 318. The inquiry therefore in the present case is, does the declaration disclose a cause of action for a liquidated amount? The appellant is one of the obligors in a bond, given for the purpose of dissolving an attachment, which had been sued out of the Court of Common Pleas of Baltimore City against Moses Colman and _____ Colman, and levied upon their goods. The condition in it is "that if the said Moses Colman and _____...