Tuck, J.,
delivered the opinion of this court.
In this case a judgment, for want of a plea, was entered against the present appellee — the defendant below — in January 1857. On the 14th of December following, an inquisition was taken and damages assessed to the plaintiff, on which a final judgment was rendered, and a writ of fi. fa. issued in January 1858, returnable to May court of that year, which writ is outstanding.
During May term 1858, the defendant moved the court to strike out the final judgment, for “fraud, deceit, surprise and irregularity,” which motion the plaintiff answered, and the court struck out the judgment and inquisition, allowing the judgment by default to stand, with leave to the plaintiff to proceed thereon, and have another inquisition.
The first question for consideration relates to the right of appeal, the appellee insisting that the order appealed from does not conclude the case, as the plaintiff may still go on and get his final judgment upon another inquiry at bar. In this view of the question, we do not concur. An appeal will not lie from a judgment on demurrer against the defendant in an action of debt on a bond with collateral condition, until an inquisition is taken and final judgment entered; the. appeal must be taken from the final judgment. Wheeler vs. The State, 7 Gill, 33. The reason js that the first judgment is merely interlocutory. The same rule applies where a j udgment by default is entered, and, from the nature of the case, an inquisition is necessary to ascertain the extent of the plaintiff’s right to recover. Wilmer vs. Harris, 5 H. & J., 1. But here the plaintiff appeals from an order striking out the final judgment, after the term has elapsed. We think this cannot be distinguished from the case of Munnikuyson vs. [327]*327Dorsett, 2 H. & G., 374. There a fiat oil sci. fa. was entered by default. After several years the defendant moved the court to strike out the judgment, and filed affidavits presenting a strong case for the interference of the court, showing, among other things, that she had removed from the county, and had no knowledge of the writ of sci. fa. until long after the fiat — an attorney having appeared for her without authority. The fiat was stricken out, but on appeal that ruling was reversed, not merely because, as stated in argument here, the court had omitted to order regular continuances to be entered, but expressly, also, on the “broad ground that, under the circumstances of the case, the county court were not authorized to strike out the judgment on the sci. fa.” It was suggested that the appeal should be dismissed, because the court had given no final judgment; bu the decision was made on the merits and the order reversed It is true, that in the next case — 2 H. & G., 379 — growing out of the same original judgment — the court, in reversing the order striking out the judgment, confined their opinion to the failure of the county court to enter the continuances— but, as the same judges sat in both cases, we are not to suppose that it was meant to impair the force of the first decision, based on the merits. The case of Keirle & Walker vs. Shriver, 11 G. & J., 405, is not like the present. That suit appears to have been so irregularly conducted, that it cannot be taken as settling principles to govern in others not precisely of the same character. The plaintiffs, though the proceedings were clearly erroneous, had no cause of complaint., because most of the irregularities operated in their favor. On a motion in arrest of judgment the court, instead of discharging the defendant without day, merely set aside the verdict by which a new trial was allowed the plaintiffs, and it was held that there could be no appeal until that trial had taken place. There was no final judgment in the ease at all. And so in Boteler vs. The State, 7 G. & J., 113, the defendant appealed from an order granting a new trial, where the judgment on issues of law was for him, but the verdict on issues of fact against him, (see page 111.) [328]*328But, as in the last quoted case, there had been no final judgment. In both these instances the proceedings, that gave rise to the appeal, were had during the term. In the cases of Baldwin vs. Wright, 3 Gill, 241, an appeal was entertained, and the judgment reversed, where the court below had quashed a ca. sa. See No. 8, page 244. But in No. 9, page 245, the appeal from a judgment overruling a motion to quash an attachment was dismissed, because it was interlocutory and not final. It had previously been decided that a plaintiff might appeal from a judgment quashing an execution. Wilmer vs. Harris, 5 H. & J., 2, (note.) Hollingsworth vs. Floyd, 2 H. & G., 87. And so from a judgment setting aside an award. State vs. Stewart & Gross, 12 G. & J., 457. And even in ejectment, where judgment against the casual ejector may be struck out after the term, if of recent date, an appeal lies at the instance of the plaintiff from an order striking out. the judgment. Klinefelter vs, Carey, 3 G. & J., 349. Now it. may be said, that striking out these judgments, or quashing an execution, did not conclude the cases, but left the plaintiffs to proceed to another judgment, or to sue out another execution, as the cases required, with as much reason, as it is here contended, the plaintiff may proceed on his judgment by default, and have another inquisition. Indeed the argument is less cogent in support of the right of appeal in the case of an execution quashed than' here, because there the judgment ascertains the debt, and the lien on realty is not disturbed, whereas the effect of setting aside the inquisition is not only to deprive the plaintiff of all benefit, from the outstanding fi. fa., but also to remit him to the uncertainties of another trial. When the authorities inform us that, “an appeal cannot be prosecuted until a decision has been had in the court below, which is so far final as to settle and conclude the rights involved in the action, or denying to the party the means of further prosecuting or defending the suit;” and “that when the proceedings below shall be terminated, an appeal will then lie, and all the errors of the court below, in the progress of the cause, will be proper subjects for com [329]*329plaint of the party, and for the correction of the Court of Appeals,” (7 G. & J., 109; Welch vs. Davis, 7 Gill, 364,) they are to be understood as applicable to cases where the judgment appealed from is entered, while the cause is in fieri, and not as embracing those where the plaintiff has obtained a final judgment, and the term has passed. In such cases it is an injury — and in many a most serious one to him — to be deprived of his judgment and the chances of early reaping its fruits, although he might eventually succeed in the cause.
The same principle applies to cases in equity. An appeal lies from an order refusing to vacate a decree and to let in the merits as a defence, on a proper case made, and also where the enrolment is opened, and the decree vacated. In each case the rights of the party are injuriously affected. Oliver vs. Palmer Hamilton, 11 G. & J., 137. For the reasons stated, the motion to dismiss the appeal is overruled.
Considering the case upon the reasons assigned, we think the court erred in striking out the judgment.
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Tuck, J.,
delivered the opinion of this court.
In this case a judgment, for want of a plea, was entered against the present appellee — the defendant below — in January 1857. On the 14th of December following, an inquisition was taken and damages assessed to the plaintiff, on which a final judgment was rendered, and a writ of fi. fa. issued in January 1858, returnable to May court of that year, which writ is outstanding.
During May term 1858, the defendant moved the court to strike out the final judgment, for “fraud, deceit, surprise and irregularity,” which motion the plaintiff answered, and the court struck out the judgment and inquisition, allowing the judgment by default to stand, with leave to the plaintiff to proceed thereon, and have another inquisition.
The first question for consideration relates to the right of appeal, the appellee insisting that the order appealed from does not conclude the case, as the plaintiff may still go on and get his final judgment upon another inquiry at bar. In this view of the question, we do not concur. An appeal will not lie from a judgment on demurrer against the defendant in an action of debt on a bond with collateral condition, until an inquisition is taken and final judgment entered; the. appeal must be taken from the final judgment. Wheeler vs. The State, 7 Gill, 33. The reason js that the first judgment is merely interlocutory. The same rule applies where a j udgment by default is entered, and, from the nature of the case, an inquisition is necessary to ascertain the extent of the plaintiff’s right to recover. Wilmer vs. Harris, 5 H. & J., 1. But here the plaintiff appeals from an order striking out the final judgment, after the term has elapsed. We think this cannot be distinguished from the case of Munnikuyson vs. [327]*327Dorsett, 2 H. & G., 374. There a fiat oil sci. fa. was entered by default. After several years the defendant moved the court to strike out the judgment, and filed affidavits presenting a strong case for the interference of the court, showing, among other things, that she had removed from the county, and had no knowledge of the writ of sci. fa. until long after the fiat — an attorney having appeared for her without authority. The fiat was stricken out, but on appeal that ruling was reversed, not merely because, as stated in argument here, the court had omitted to order regular continuances to be entered, but expressly, also, on the “broad ground that, under the circumstances of the case, the county court were not authorized to strike out the judgment on the sci. fa.” It was suggested that the appeal should be dismissed, because the court had given no final judgment; bu the decision was made on the merits and the order reversed It is true, that in the next case — 2 H. & G., 379 — growing out of the same original judgment — the court, in reversing the order striking out the judgment, confined their opinion to the failure of the county court to enter the continuances— but, as the same judges sat in both cases, we are not to suppose that it was meant to impair the force of the first decision, based on the merits. The case of Keirle & Walker vs. Shriver, 11 G. & J., 405, is not like the present. That suit appears to have been so irregularly conducted, that it cannot be taken as settling principles to govern in others not precisely of the same character. The plaintiffs, though the proceedings were clearly erroneous, had no cause of complaint., because most of the irregularities operated in their favor. On a motion in arrest of judgment the court, instead of discharging the defendant without day, merely set aside the verdict by which a new trial was allowed the plaintiffs, and it was held that there could be no appeal until that trial had taken place. There was no final judgment in the ease at all. And so in Boteler vs. The State, 7 G. & J., 113, the defendant appealed from an order granting a new trial, where the judgment on issues of law was for him, but the verdict on issues of fact against him, (see page 111.) [328]*328But, as in the last quoted case, there had been no final judgment. In both these instances the proceedings, that gave rise to the appeal, were had during the term. In the cases of Baldwin vs. Wright, 3 Gill, 241, an appeal was entertained, and the judgment reversed, where the court below had quashed a ca. sa. See No. 8, page 244. But in No. 9, page 245, the appeal from a judgment overruling a motion to quash an attachment was dismissed, because it was interlocutory and not final. It had previously been decided that a plaintiff might appeal from a judgment quashing an execution. Wilmer vs. Harris, 5 H. & J., 2, (note.) Hollingsworth vs. Floyd, 2 H. & G., 87. And so from a judgment setting aside an award. State vs. Stewart & Gross, 12 G. & J., 457. And even in ejectment, where judgment against the casual ejector may be struck out after the term, if of recent date, an appeal lies at the instance of the plaintiff from an order striking out. the judgment. Klinefelter vs, Carey, 3 G. & J., 349. Now it. may be said, that striking out these judgments, or quashing an execution, did not conclude the cases, but left the plaintiffs to proceed to another judgment, or to sue out another execution, as the cases required, with as much reason, as it is here contended, the plaintiff may proceed on his judgment by default, and have another inquisition. Indeed the argument is less cogent in support of the right of appeal in the case of an execution quashed than' here, because there the judgment ascertains the debt, and the lien on realty is not disturbed, whereas the effect of setting aside the inquisition is not only to deprive the plaintiff of all benefit, from the outstanding fi. fa., but also to remit him to the uncertainties of another trial. When the authorities inform us that, “an appeal cannot be prosecuted until a decision has been had in the court below, which is so far final as to settle and conclude the rights involved in the action, or denying to the party the means of further prosecuting or defending the suit;” and “that when the proceedings below shall be terminated, an appeal will then lie, and all the errors of the court below, in the progress of the cause, will be proper subjects for com [329]*329plaint of the party, and for the correction of the Court of Appeals,” (7 G. & J., 109; Welch vs. Davis, 7 Gill, 364,) they are to be understood as applicable to cases where the judgment appealed from is entered, while the cause is in fieri, and not as embracing those where the plaintiff has obtained a final judgment, and the term has passed. In such cases it is an injury — and in many a most serious one to him — to be deprived of his judgment and the chances of early reaping its fruits, although he might eventually succeed in the cause.
The same principle applies to cases in equity. An appeal lies from an order refusing to vacate a decree and to let in the merits as a defence, on a proper case made, and also where the enrolment is opened, and the decree vacated. In each case the rights of the party are injuriously affected. Oliver vs. Palmer Hamilton, 11 G. & J., 137. For the reasons stated, the motion to dismiss the appeal is overruled.
Considering the case upon the reasons assigned, we think the court erred in striking out the judgment. A party who is himself in default, by disregarding the process of the court, whether contemptuously or not, ought to present a much better case for striking out a judgment than this record discloses. If the appellee had appeared to the suit according to the exigency of the writ, and defended the cause, he might have escaped the predicament in which he now finds himself. A judgment by default, if regularly entered, (and to this one there is no objection,) is as binding as any other, as far as respects the power and jurisdiction of the court, in declaring that the plaintiff is entitled to recover; though the amount of the recovery, in some cases, remains to be ascertained by a jury. When determined, we are not aware of any rule or principle of law, which attributes to such a finding less dignity or efficacy than to a verdict found upon issues. They are both based upon evidence, and if any be improperly admitted, it is the fault of the defendant himself, who is entitled to participate in the inquiry at bar; and if he absents himself, he has no better standing in court afterwards than a defendant who has defended the cause. Indeed ours would [330]*330be a singular system of jurisprudence if it were otherwise. The Act of 1794, ch. 46, places the inquiry on the same footing with other jury trials: “The evidence is to be given in open court in the same manner, and under the same regulations.” The parties may pray the opinion of the court and take bills of exception, and may appeal, as in other cases; and the inquisition may be set aside for the same grounds as would avail on a motion for a new trial. Ev. Prac., 335, 338. Belt vs. Worthington, 3 Grill & Johns., 247.
The grounds of the present motion are fraud, deceit, surprise and irregularity, which are supposed by counsel to be covered by the allegations that, “the judgment was rendered for one thousand dollars, in the face of the fact that the plaintiff’s own evidence, appearing in the record, establishes the amount to be not more than $204.66,” and that the only evidence before the jury was that contained in the return of a commission that had not issued according to the Act of Assembly, accompanied by a statement of the circumstances of, and manner in which the defendant became possessed of the plaintiff’s goods; all which grounds are fully set forth in the defendant’s motion to strike out the judgment. As to the first ground, we think that it is nothing more than a reason for a new trial, because the jury found against the evidence in the cause, and does not substantiate the charge of fraud, deceit, surprise or irregularity. We cannot go into the circumstances of the case, to perform the office of jurors; and. especially in an action of trover, where the question was the value of the property, and not what it produced at public auction. The defendant might have moved for a new trial, and the judge who tried the cause, in the exercise of his legal discretion might have afforded relief, but we cannot. In Our judgment the Act of 1787, ch. 9, sec. 6, does not apply to any such reason for opening a case. It is not a sufficient answer to say that he was not present. At any rate, it was his own laches that he was not, and the plaintiff ought not tohsuffer by it.
, ..The same rnay be said, substantially, of the irregularity as to. the . commissions..; It is merely the case of alleged inad[331]*331missible testimony submitted to the jury. The law is well settled, that if a party allow such evidence to go to the jury he is bound by the verdict. He must object when the evidence is offered. As before observed, his absence does not vary the principle. If he had been present, or if this had been a trial inter partes, would he now be heard to object to the evidence on any such ground ? Certainly not. If such were the law, every judgment might be opened where, on the trial, incompetent witnesses had been examined, or inadmissible evidence tendered and read to the jury. Besides, the very rule of court relied upon by the appellee requires, that, “exceptions to the execution and return of a commission shall be made before the jury is sworn, otherwise they shall be considered as waived.”
(Decided June 29th, 1860.)
We do not think that this ruling of (he court below can be maintained consistently with well settled principles of law. We are satisfied that a party defendant, who had been present at the trial, could not be relieved on any of the grounds suggested, and to allow a defendant who was absent, without any fault on the part of his adversary, to come in after the term and have redress, would be reversing the maxim, “vigilantibus non dormientibus leges subveniunt. ’ ’
The judgment must be reversed and a procedendo ordered, to allow the appellant the benefit of his fi. .fa.
Judgment reversed and procedendo awarded.