Newbold v. Green
| Citation | 90 A. 513,122 Md. 648 |
| Decision Date | 18 February 1914 |
| Docket Number | 19. |
| Parties | NEWBOLD v. GREEN. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Chas. W. Heuisler Judge.
"To be officially reported."
Action by Robert S. Green against David M. Newbold, Jr. From a judgment for plaintiff, defendant appeals. Reversed, and new trial awarded.
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, URNER STOCKBRIDGE, and CONSTABLE, JJ.
Walter D. Eisman and Joshua Horner, Jr., both of Baltimore, for appellant. Louis B. Bernei and Wm. J. O'Brien, Jr., both of Baltimore, for appellee.
This suit was brought by the appellee against the appellant under what is commonly known as the "Baltimore City Rule Day Act." The narr. consisted of the common counts, and was supported by affidavit in the form required by the act of assembly. Attached to the narr. was an account, the cause of action in the case, and which reads as follows:
The defendant was summoned to the second Monday in November 1913, the 10th day of the month, and under the provisions of the act, in the absence of a proper plea, or plea supported as provided by the act, the plaintiff would have been entitled to a judgment on the 26th of November. On November 24th, the defendant filed a demand for a bill of particulars and at the same time presented an application to the court for an extension of the time within which to plead. The demand for the bill of particulars was refused by the court, as was also the application for an extension of time for pleading; the lower court holding "that the account filed with the declaration fully, completely, and distinctly sets out the particulars of the plaintiff's claim under the declaration to which it is attached," and that therefore the demand was improperly made, and no sufficient cause shown under the phraseology of the statute, why an extension of time for pleading should be granted. On the 26th November, the defendant having declined to plead, a judgment by default was entered, for lack of a plea, and extended for $182.21, damages, assessed by the court. It is from this judgment that the present appeal has been taken.
At the oral argument it was suggested that the appeal could not be entertained, for two reasons; First, that an exception should have been reserved to the ruling of the court, holding the account filed with the narr. to have been tantamount to a bill of particulars, and that, no such exception having been reserved, no appeal would lie from that ruling; and, in the second place, that the extension of time for pleading was a matter resting wholly in the discretion of the trial court, and that no appeal will lie from the action of the court, where the matter is one within the discretion of the trial court.
Section 2 of article 5 of the Code (1912) gives the right of appeal from any judgment or determination of a court of law, by which is meant a final judgment or determination; it does not lie from matters interlocutory in their character. Griffee v. Mann, 62 Md. 253. But on appeal from a final judgment rulings of the lower courts upon matters of law may be reviewed without any special exception taken; a frequent example of which arises in the case of the ruling of the trial court upon demurrer, and in such a case it has been held that no bill of exception or writ of error is necessary to bring up for review the action of the trial court. Kendrick v. Warren, 110 Md. 76, 72 A. 465.
With regard to the second ground, namely, the discretion of the court as to granting or refusing an extension of time to plead, the statute provides that, upon such demand being made, the court may, for good cause shown, extend the time to plead. If the defendant was entitled to make a demand for a bill of particulars in this case, he was then entitled to such extension as in the discretion of the court might be requisite for him to prepare proper pleas. That time might be longer or shorter, according to the character of the claim as disclosed in the bill of particulars filed in response to a demand therefor; taking up the case as presented in the record, the proper determination is very readily reached by adhering to well-established rules of pleading, and can be briefly stated.
The account which is flied with the declaration forms no part of it (Universal Life Ins. Co. v. Bachus, 51 Md. 28) any more than does the affidavit which is filed when it is desired to bring a suit under the Rule Day Act. A suit brought on the common counts is very general in its terms, and does not apprise the defendant at all as to the real nature of the demand which the plaintiff is making, and therefore it is provided by the Code (article 75, § 24, subd. 107) that "either party may require a bill...
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