Henderson v. Gibson , 1862 Md. LEXIS 69 ( 1862 )

Cocieran, J.,

delivered the opinion of this Court:

It appears from the record in this case, that the appellants, having obtained a judgment in the Court of Common Pleas for Baltimore city, against Elliot Johnson, caused an attachment to he issued thereon, at the January term of 1855, and laid in the hands of the appellee, which was duly returned by the sheriff, at the following May term of that Court. The appellee failing to appear on the return of the writ, a judgment by default was entered against him on the loth of May 1855. At the January term 1856, after the lapse of the preceding May and September terms, without further action taken by either party, the Court, on motion of the appellee, ordered the judgment by default to be stricken out, and permitted him to appear and plead. At January term 1860, the appellants replied, and upon the joinder of issue, filed interrogatories, which were answered by the appellee, denying funds, &c. The appellants, after offering evidence, at the trial of the case, to show the time and manner of striking out the judgment by default, took their exception thereto, and we have now to consider whether, under the circumstances, the question raised can be entertained as a ground for reversing the judgment from which this appeal was taken. In view of the cases decided by this Court, we think-there can be no difficulty in disposing of the question. The judgment by default, by the lapse of the term at which it Avas entered, without motion or other proceeding had upon it, became final and absolute, and the appellants were undoubtedly entitled to an appeal from the order of the Court striking it out. Green vs. Hamilton, 16 Md. Rep., 317. Walters & Harvey, vs. Munroe, 17 Md. Rep., 505. Graff & Gambrill vs. Merchants & Miners Transp. Co., 18 Md. Rep., 364. The right of appeal thus afforded was- limited, koAvevcr, and could have been availed of only within the period of three years ■after the right had accrued, but Avkether Avithin that time the error in striking out the judgment could have been set up as a reason for reversing a jirdgment obtained ujoon a trial of issues subsequently'joined or not, we are clearly of opinion that it is uoav too late to be presented for that purpose. The appeal was not taken until upwards of four years after the judgment by default was stricken out, and as that act of the Court is the only ground of exception presented for reversing the present judgment, the entertainment of it, to effect that result, would operate to defeat the statutory provisions limiting the time for taking appeals to three years. We think, further, that the appellants, by their pleadings and joinder of issue, subsequent to the order excepted to, waived their right to an appeal from that order. It cannot be supposed that the right of appeal was pending during the voluntary proceedings of the appellants in bringing the cause to issue and trial before the jury. Their acts, in thus pleading and trying the caso upon issues subsequently joined, were entirely inconsistent with the reservation of their right of appeal upon the order striking out the judgment by default, and for that reason they must be held to have abandoned it. Without expressing any opinion as to the propriety of the act excepted to, it is sufficient to say, that from the lapse of time, and the implied waiver of objection to it by the appellants, it presents neither a proper nor sufficient reason for reversing this judgment.

(Decided December 5th, 1862.)

Judgment affirmed„