Horner v. O'Laughlin , 1868 Md. LEXIS 97 ( 1868 )

Miller, J.,

delivered the opinion of the court.

This appeal is from a judgment of the Court of Common Pleas extending a previous judgment by default for want of a plea. There was no motion in arrest or to strike out the judgment for fraud or irregularity, nor was there any exception taken certifying to this court the facts upon which the *court below acted. The suit was not instituted under the provisions of the 5th, 6th, 7th and 8th sections of the Act of 1864, ch. 6, but in common form invoking the exercise of the ordinary powers of the court 'in the usual course of its procedure. Upon appeal from the judgment of a court of record proceeding according to the course óf the common law, this court cannot reverse the judgment unless it affirmatively appears on the face of the record the court had no jurisdiction over the cause or the parties, or that the judgment was such as the law does not authorize to be pronounced upon the verdict, as was the case in Watkins v. State, 14 Md. 424. Any error or irregularity in the proceedings which does not reach the jurisdiction of the court, or affect, in the sense indicated, the legal validity of the judgment, cannot be reviewed by this court either upon appeal or writ of error, because the appellate court in this State is, and has long been, expressly inhibited by law from deciding any point or -question which does not appear by the record to have been tried and decided by the court below. Act of 1825, ch. 117; Code, Art. 5, sec. 12; and Act of 1861-2, ch. 154. Such has been the uniform construction of this law, the only exceptions to the rule being demurrers and motions in arrest of judgment. We refer to Morgan v. Briscoe, 4 Md. 272; Bridendolph v. Zellers, 5 Md. 58; and Hallowell v. Miller, 17 Md. 305, as illustrating the series of decisions upon this subject.

The summons was served upon the defendant by the Sheriff of Baltimore City, and he was therefore prima facie within the jurisdiction of the Court of Common Pleas. If he designed to avail himself of the defense that he was a resident of Carroll County and not of Baltimore City, he should, upon the return of the writ, have moved for a non pros, or presented the objection in some other mode than by the mere filing of the affidavit of a third party, as to his non-residence. When, therefore, the plaintiff’s motion that this affidavit be stricken out “ under the rule ” of the court, was granted, we must *assume, in the absence of the rule on the subject, that the court acted in conformity to its rules in that respect lawfully adopted.

The chief objection relied on in argument is that it was error on the part of the court to lay a rule to plead, and enter a judgment by default, where there was no appearance for the defendant, and English authorities have been cited to the effect that a judgment for want of a plea, signed without any appearance being entered, is a nullity. Whether a judgment so entered in this State, after the party has been returned summoned, could be regarded as a nullity, since the substitution of a summons for the writ of capias ad respondendum consequent upon the abolition of imprisonment for debt, is matter of grave doubt, but it is not necessary that the point should be decided in this case, because it does not affirmatively appear upon the face of this record that an appearance had not been entered for the defendant. By the Code, Art. 75, sec. 85, where a defendant is returned summoned and fails to appear, it is made the duty of the court, on the second day of the term to which the summons is returnable, to enter the appearance of the defendant, and the action shall then proceed as if the party had appeared in person, and we are of opinion this provision, though in terms apparently applicable to the Circuit Courts only, is extended to the Court of Common Pleas and the Superior Court of Baltimore City, by virtue of secs. 50 and 54, Art. 29, of the Code. It is, therefore, made the duty of the court in such cases, to enter the appearance of the defendant, and in the silence of the record on the subject, and in the absence of all proof to the contrary, we must intend the appearance was entered in this case before the rule plea was laid and the judgment by default entered. The maxim “ omnia rite esse acta prcesumuntur ” applies, and no intendments can be made on this appeal against the regularity of the proceedings, or the validity of the judgment. The terms in the entry of the judgment by default, that the “ defendant being called comes not,1’ &c., *have been relied on as showing affirmatively that no appearance was ever entered in the case; but such is the form in which judgments of nil dicit, after appearance, have always been entered in this State. 2 Harr. Ent„ 99. In such an entry the phrase “comes not,” merely imports a failure of the defendant to come and answer the declaration, and not that he has never appeared to the suit.

The remaining objection that the judgment was extended and the damages assessed by the court without the intervention of a jury of inquisition, is equally unavailing. The declaration contains the common counts applicable to a claim upon open account, as well as the count for unliquidated damages for refusal to deliver the hay according to contract, and there is nothing in the record to show what proof was exhibited to the court in support of the plaintiff’s action. The Judge has power under the Act of 1864, ch. 175, to assess damages upon satisfactory proof of the correctness of the account where the suit is to recover a debt due upon open account, and in the absence of all proof to the contrary, we must assume the court in assessing damages in this case proceeded under the common counts, and not under the special count in the declaration.

The appropriate remedy of the appellant for all the matters complained of in argument, was by motion to strike out the judgment for irregularity. Had such motion been made with reasons assigned, and the facts shown by affidavits or otherwise in support of the motion, and presented to this court by means of an exception, the questions argued would have been properly before us for adjudication. But in view of the restrictions placed by law upon the action of this court in such cases, and of the intendments we are bound to make in support of the judgment, it cannot be reversed upon this appeal.

Judgment affirmed.