Knickerbocker Life Insurance v. Hoeske , 32 Md. 317 ( 1870 )

Bartol, C. J.,

delivered the opinion of the Court.

The amount claimed in this suit by the appellee, is a liquidated sum, fixed by the contract, upon which the action was brought. The case, therefore, is clearly within the provisions of the Act of 1864, ch. 6. Upon a claim of this nature, there can be no difficulty in stating the account and verifying the same by affidavit. It is not like the case of Smithson & Owens vs. The Telegraph Co., 29 Md., 162, in which it was held the claim was, in its nature, one for unliquidated damages not fixed by the contract, nor did the contract furnish any certain standard by which the amount of the plaintiff’s claim could be certainly ascertained. In this case, if thé plaintiff has a right of action, the sum she is entitled to recover is fixed or may be ascertained by the terms of the contract.

The contingencies upon which her right of action depends, have no relation to the question of the nature and amount of indebtedness, if any exists; that is fixed and definite, and is, in no sense, in the nature of unliquidated damages.

At the time the suit was brought, there was filed with the declaration an account of the defendant’s indebtedness, verified by affidavit, in accordance with the eighth section of the Act of 1864, and the policy of insurance was filed therewith as a voucher, and referred to in the account. The policy, as copied in the record, does not appear to be signed by the president and secretary of the company, as required by the second condition therein; but this defect or omission has been cured by the agreement of counsel, filed in this Court, whereby it is admitted that both the original policy and the receipt for-premium on its renewal were signed by the president and secretary. It was, therefore, a sufficient voucher of the contract under the Act of 3 864.

It appears by the record that the summons was issued on the 9th day of December, 3868, and made returnable on the second Monday of the same month, being the first return day thereafter, and was duly served. The defendant appeared by attorney on the return day, and was put under rule plea by the second Monday, being the 11th day of January, 1869, that being the first day of the ensuing term of the Court."

On the 7th day of January, 1869, the defendant filed three pleas to the merits, with what purported to be an affidavit of the defendant appended thereto, a copy of which was served on the plaintiff’s attorney the same day, and a rule replication within fifteen days thereafter, was laid on the plaintiff. Whereupon a joinder of issue upon the pleas was entered by the clerk.

On the second Monday of January, 1869, the plaintiff’s, attorney gave an order to the clerk to strike out the joinder of issue, which was done, aud filed a motion in writing asking-the Court to enter judgment against the defendant, notwithstanding the pleas; for the reason that there was no sufficient affidavit to the picas under the 7th section of the Act of 1864. The defendant then filed a petition asking leave to “ file an additional or supplemental plea with an additional or supplemental affidavit.”

The cause was heard on the motion of the plaintiff, and on the 27th day of February, 1869, judgment by default was entered against the defendant for want-of sufficient affidavit to its pleas.

The Court then proceeded, on the motion of the plaintiff, to extend the judgment, and on the same day entered the judgment “for the sum of $2,000, damages assessed by the Court, with interest from date till paid, and costs of suit.”

The defendant’s motion for a trial by jury to assess the damages having been overruled, the defendant excepted:

1st. To the refusal of the Court to allow amended pleas and affidavit'to be filed.-

2d. To the entering of the judgment by default.

3d. To the extension of the-judgment by the Court, and its refusal to refer the question of damages to a jury.

1st. As to the motion to file an additional or supplemental plea and affidavit. In our judgment this application is not to be considered as an ordinary motion to amend, and therefore the question whether any appeal lies from the action of the "inferior Court, upon a mere motion to amend, does not necessarily arise in this case, was not noticed in the argument, and no opinion is expressed thereon. The application made by - the defendant was substantially a petition for leave to .plead to the action, as if no pleas had previously been filed. For having put in pleas without any sufficient affidavit, they were in contemplation of the Act of 1864, not any valid or effectual pleas for the purpose of preventing a judgment by default, for the want of plea; and, therefore, the question presented is, whether there was error in refusing to grant leave to the defendant to file a plea with affidavit, at the time when the motion was made ? The solution of this question depends upon the construction of the Act of 1864.

By the 7th section it is provided that “ the plaintiff shall be entitled to judgment on the first day of the term of the Court in which said action is pending, or at the return day next succeeding the appearance of the defendant, which ever shall first happen or occur, although the defendant may have pleaded; unless such plea contains a good defence, and unless the defendant, or some one in his behalf, shall make oath or affirmation that the said plea is true, and that he verily believes that he will be able at the trial of the cause to produce sufficient evidence to support the said plea.”

Under this section the plaintiff was clearly entitled to claim judgment on the second Monday of January, 1869; the time allowed by law to the defendant to plead had expired before that day; and unless a sufficient plea, verified by affidavit, as required by the Act, had been filed, the judgment would be entered'as matter of right, if claimed by the plaintiff’. It was then too late for the defendant to plead; or if pleas had been filed, without affidavit, or with a defective or insufficient affidavit, no right existed to file supplemental pleas and affidavit. The proceeding is one not under the general provisions of law regulating suits, but a special proceeding under the Act of 1864, in which a right to plead cannot be claimed after the time limited by the Act for pleading has expired, and the plaintiff has become entitled to a judgment. To allow the defendant to file pleas after that time, would defeat the whole purpose and design of the Act of 1864. Upon this question a majority of the Court are of opinion that the action of the Court of Common Pleas, in refusing leave to file an additional plea and affidavit, ought to be affirmed.

2d. There was no error in entering the judgment by default, upon the case as it stood on the second Monday of January, 1869; the affidavit filed with the pleas being altogether defective and insufficient, it was properly treated as null and void, and the defendant was in the position of having plead without any affidavit. It scarcely requires an argument to prove that what purported to be an affidavit was Avholly insufficient.

The affidavit purports to have been made by the defendant, Avhich is a corporation incapable of making an oath; where a corporation is sued under the Act of 1864, its pleas must be verified by the oath of some natural person capable of making an affidavit. The affidavit, as it appears by the amended record, if it had been made by a competent person, is defective in not containing the necessary averments as required by the Act. For these reasons the judgment by default entered on the 27th day of February, 1869, must be affirmed.

(Decided 10th March, 1870.)

3d. We think the Court below erred in refusing the application of the defendant for “a trial by jury of the question of the amount of damages to be assessed to the plaintiff.”

The 9.th section of the Act of 1864, provides that “when any judgment by default shall be entered under the preceding sections, the Court may assess the damages’ on proof thereof without empanelling a jury.” This section must be construed in subordination to the constitutional provision. Article 15, section 6, which declares that “the right of trial by jury of all issues of fact in oivil proceedings, in the several Courts of Law in this State, where the amount in controversy exceeds the sum of five dollars, shall be inviolably preserved.” In the face of this provision, the 9th section of the Act of 1864,'cannot be construed so as to deprive the defendant in this case, of the right of having the damages ascertained by a jury. In a proceeding under this Act, where a defendant has not appeared in Court and is in default; or having appeared, waives or fails to ask to have this question referred to a jury, the Court is empowered tó assess the damages.

But the defendant in this case not having waived his constitutional rights, was entitled to have the question of the amount of damages passed upon and decided by a jury. We therefore reverse the judgment of the Court below, whereby the judgment by default was extended and the amount of damages was ascertained.- The judgment by default is left undisturbed, and the plaintiff will be entitled to proceed by writ of inquiry to have her damages assessed by a jury.

Judgment by default affirmed and extended judgment reversed.