Rice v. West

Grason, J.,

delivered the opinion of the Court.

It appears from the record in this case that a judgment by default was entered against the appellant on the 14th day of September, 1874, and that, on the following day, a motion was filed to strike out the- judgment. Pending that motion, the appellant, on the 26th day of September, filed a suggestion and affidavit for the removal of the cause, and on the same day the Court refused to remove the cause, and the defendant appealed. On the same day the Court also overruled the motion to strike out the judgment. On the 14th of November following, judgment was extended, and on the Wth day of the same month execution was issued, and on the 23rd a motion to quash the execution was filed. On the 28th of November the Court overruled a motion, filed that day, to strike out the order overruling the motion to strike out the judgment, as also the motion to strike out the judgment extended in the case, as well as the motion to quash the execution, and the defendant took an appeal from the decision of the Court overruling said motions.

The questions presented upon this appeal are therefore, first, whether a removal of a cause can be had after a judgment by default, and second, whether, after an appeal has been taken from the action of the Circuit Court, refusing to remove the cause there is power in that Court to extend the judgment by default and issue execution thereon ?

First. — In the case of the Northern Central Railway Company vs. Rutledge, 41 Md., 372, it was held that a removal of a cause could not be had after a judgment by default had been entered. The motion for the removal in this case was therefore too late and was properly denied.

Second. — As no right of removal existed at the time the suggestion and affidavit were filed, the Circuit Court clearly had power' and authority, on the application of the appellee to extend the judgment, and, as no bond was filed by the appellant, to issue execution. We have no statute prohibiting such proceedings, and if the appellee chose to take the risk of having the proceedings, taken after the appeal, rendered null by a reversal of the order refusing the removal of the case, we can discover no good reason why he should not have the right to extend his judgment by default and have execution thereof. As we have before stated there was no right to remove at the time the suggestion and affidavit were filed, and, notwithstanding the appeal from the order denying the removal was then pending, the Circuit Court had full power and authority to extend the judgment, and issue execution, and no reason for striking out the judgment or quashing the execution has been assigned other than the alleged want of power to enter the one, or to issue the other during the pendency of this appeal. The orders appealed from will therefore be affirmed.

(Decided 10th June, 1875.)

Orders affirmed.