Walsh v. State ex rel. Walsh , 53 Md. 539 ( 1880 )

Brent, J.,

delivered the opinion of the Court.

At the argument' of this case the Court declined to hear the counsel for the appellee, and intimated that the ruling appealed from would be affirmed.

We think that the appeal lies in this case, as the motion to strike out is for cause', and that it is not within the decision of Townsend vs. Chew, 31 Md., 249. There the motion was made before the term expired, and the judgment having been stricken out, it was held to be within the discretion of the Court, because within the term at which the judgment was rendered. But even in that case an appeal would lie if the motion to strike out was for cause, and was overruled by the Court.

The objection that one of the plaintiffs was an infant cannot be maintained. There is no proof that such is the fact from anything to be found in the record.

The objection that separate suits ought to be brought cannot be maintained. The action is brought in the name of the State, under Art. 93, sec. 156, of the Code. That section provides that a guardian may give one bond, where there are several wards entitled to portions of the same estate, and that- said bond shall be liable to suit by all or either of the wards named therein. Under the language of this section, which seems to be too plain to admit of but one construction, we think this suit is properly brought. It alters in this respect the rule of pleading contended for by the appellants’ counsel, which would otherwise require the suits to be brought in severalty upon the ground of separate and distinct interests in the subject-matter of the suit.

But even if this were not so, the objection came too late. It would have been ground for demurrer or a plea in abatement. It is no sufficient cause for striking out a judgment upon an inquisition after judgment by default, which determines the plaintiff’s right to recover.

There is nothing in the record to support the objection that the judgment was a surprise, technically speaking, to the defendants. On the contrary, the record shows that actual notice was served upon each of the defendants on the 12th of October, 1818, of the intention to take an inquisition in the case.

(Decided 1st April, 1880.)

We see no reason which could justify the Court in ordering this judgment to he stricken out. The refusal to do so will therefore he affirmed.

Rulings of the Court affirmed.

In the second appeal the motion to dismiss must prevail. This appeal is from the judgment hy default, which was rendered on the 10th of October, 1818. The appeal from it was not taken until the 25th of September, 1819, and is therefore too late.

Appeal dismissed.

(Decided 1st April, 1880.)