Opinion
09-19-1871
WALL v. ATWELL.
Robert Y. Conrad & Son, for the appellant. Parker, for the appellee.
1. In debt on bond, if the common order and the common order confirmed have been regularly entered at rules, the cause is properly on the office judgment docket at the next term of the court; though no endorsement of the proceedings may have been made upon the papers in the cause.
2. If the proceedings in the office had been so irregular that the cause is not properly on the office judgment docket, the court should remand it to the rules for proper proceedings.
3. An office judgment cannot be set aside when it stands as an office judgment on the docket of the court, by a plea in abatement.
In April 1869, Asa Wall, assignee, sued out of the clerk's office of the Circuit court of Frederick county, a writ in debt against Samuel R. Atwell, for eleven hundred and seventy-six dollars, with interest from the 25th of November 1862. At the May rules a declaration was filed setting out a note for $1,176, executed by Atwell to V. Wall, and assigned by her to the plaintiff. The office judgment was set aside at the June term of the court, and the defendant pleaded payment. And thereupon the plaintiff had leave to file an amended declaration; and the cause was remanded to the rules.
At the rules in January 1870, the plaintiff filed his amended declaration, not describing himself as assignee. This declaration contained three counts: The first for $1,050, borrowed by the defendant from the plaintiff. The second was that in consideration that the plaintiff had loaned to the defendant $1,050, the defendant had delivered to an agent of the plaintiff his note whereby he had promised to pay to the plaintiff this sum of $1,050; and this note had been handed by a third person to the defendant without the same or the interest having been paid, and the defendant still had possession of it. The third count set out an accounting between the plaintiff and the defendant, when the defendant was found indebted to the plaintiff for money loaned, and interest thereon in the sum of $1,176.
The common order was taken and confirmed at rules on this declaration, and the cause stood upon the office judgment docket at the June term of the court. At this term of the court, when the cause was called, the defendant appeared by counsel and offered a plea in abatement; to the admission of which the plaintiff objected. But it appearing to the court by inspection of the rule book, that the same had been irregularly kept, and that in this cause the statement showing the state of the parties and pleadings, and orders in the cause, required by the rules of practice of the court had not, up to the commencement of the term of the court, been filed and kept with the papers of the cause, except the single entry on the back of the plaintiff's declaration, in these words--" 1869, 18 Dec. filed, W. B. Reily, D. C." ; the said 18th day of December 1869 being neither a rule day or a day of any term of the court, and the other entries on the back of said declaration having been made since the commencement of the present term of the court: and it further appearing from the statement of the counsel for the defence, that upon an examination of the papers, at the June rules 1870, had by him with reference to the preparation of the defendants' defence, he was misled by the single entry aforesaid, and regarded the filing of any defence as premature, and that he was surprised at finding the said cause entered upon the office judgment docket of the term; the court overruled the objection and admitted the plea to set aside the office judgment. To this opinion of the court the plaintiff excepted.
The defendant then filed his plea setting out the variance between the declaration and the writ. To this plea the plaintiff demurred: but the court overruled the demurrer and rendered a judgment for the defendant. And thereupon Wall applied to this court for a supersedeas; which was awarded.
Robert Y. Conrad & Son, for the appellant.
Parker, for the appellee.
MONCURE, P., delivered the judgment of the court.
The court, without deciding whether the causes of action set forth in the amended declaration could or could not properly be joined with the cause of action set forth in the original declaration, is yet of opinion that the supposed variance between the writ and the amended declaration, if there be any such variance, is matter for a plea in abatement only, and not a plea in bar; and as an office judgment cannot be set aside except by the defendants appearing and pleading to issue, (Code, 714, §45), that is, pleading in bar of the action, unless some matter in abatement happens after the conditional judgment is confirmed in the office, and before the next term; in which case the defendant should be allowed to set aside the office judgment by pleading the matter, in the form of a plea puis darrein continuance, before the end of the next term, (1 Rob. Pr. old ed. p. 205; 5th Id. new ed. p. 18); the Circuit court, therefore, erred in overruling the objection of the plaintiff to the filing of the special plea offered by the defendant in this case, (being a plea in abatement), and ordering the same to be filed to set aside the office judgment. And the court is further of opinion, that the reasons assigned by the said court for overruling said objection and ordering said plea to be filed are not sufficient for that purpose. The record shows that, although it appeared to the said court by inspection of the Rule Book thereof, that the same had been irregularly kept, and although in this cause the statement showing the state of the parties and pleadings and orders in the case, required by the rules of practice of the court, had not, up to the commencement of the term when the plea was received been filed and kept with the papers of the cause; yet the rules in this cause, to wit: the " Common Order," and the " Common Order confirmed," were regularly taken, and the cause was regularly placed on the office judgment docket, where it properly was when the said plea in abatement was received. If the rules had not been regularly taken, and the cause had been improperly put upon the office judgment docket, it would have been competent for the court, and indeed would have been its duty, (having control over all proceedings in the office during the preceding vacation), to have remanded the cause to the rules, in order that proper proceedings might there be had therein. It is, therefore, considered by the court, that the said judgment is erroneous, and that the same be reversed and annulled, and that the plaintiff recover against the defendant his costs by him expended in the prosecution of his writ of supersedeas aforesaid here. And it is ordered that the said plea and all the proceedings thereon be set aside, and the cause remanded to the said Circuit court for further proceedings to be had therein, on an enquiry of damages, or on any plea in bar which may be offered by the defendant and received by the court, or otherwise, according to law and in conformity with the foregoing opinion and judgment; which is ordered to be certified to the said Circuit court of Frederick county.
JUDGMENT REVERSED.