May v. Wolvington

14 A. 706, 69 Md. 117

• Court: Court of Appeals of Maryland
• Decided: June 13, 1888
• Status: Published

Opinion

Bryax, J.,

after stating the case as above, delivered the opinion of the Court.

There was no necessity whatever for instituting two suits at the same time to recover the indebtedness alleged .to be due from the defendants to the plaintiff. Mr. Downs testifies that he supposed that there was only one suit; and that only one copy of a declaration was served on him. Whatever mistakes may have been made by him in these respects, it is abundantly clear that he intended to resist for his clients the payment of every portion of the plaintiff's claim. He did not know of the existence of any suit except the one now under consideration, and the pleas which he filed were intended to be defences to this identical suit. It is true, he intended to controvert the claim of the plaintiff in its entirety; but in consequence of its being divided into two suits, his purpose could not be attained by one set of pleas. It was his misfortune that the existence of the second suit escaped his observation; but nevertheless there is no conceivable reason to suppose that he did not intend to resist the only suit which was known to him. He filed his pleas promptly on the return day, and denied utterly the existence of any indebtedness whatever. The significance of this step cannot he mistaken.

When an attorney delivers to the clerk his pleas properly entitled, with a direction in writing to file them, he can do nothing more. If hy mistake or inadvertence, the clerk files them in a case to which they are not directed, he is not hy any means to lose the benefit of them. When a party has complied with all the requirements of the law, there is no rule of right reason which would punish him for the errors of a ministerial officer of the Court. These defendants have done nothing to forfeit the invaluable privilege of being heard in their own defence. It is but simple justice that they should have the benefit of their pleas. They must be considered as filed in the proper case. They were, in legal effect, filed therein. The fact that the clerk placed them in the wrong bundle of papers, and made the docket entries in the wrong suit, has no more effect in defeating the rights of the defendants, than if he had mislaid them in any other way; or had lost them.

It has been said that if these pleas had been regularly filed in the cause, they would not have prevented the rendition of the judgment. And it is alleged as a reason for this conclusion, that the affidavit does not pursue the terms prescribed by the one hundred and seventieth section of the Act of 1886. The plea of plene aclministravit, if true, is a complete protection to the defendants against all jaersonal liability; the plaintiff being entitled, if the plea should be found for defendants, merely to a judgment guando.

But the fourth plea asserts that the claim of the plaintiff has been fully and completely satisfied and paid. Now the affidavit states that every plea is true, and that the affiant believes that the defendants will be able at the trial of the cause to produce sufficient evidence to support the said pleas, and that he is advised hy counsel to file them. It would certainly be surplusage to insert in the affidavit a statement of the “amount of the plaintiff’s demand, if anything, admitted to he due or owing, and the amount disputed.” This statement would he a verbal compliance with the terms of the Act; hut it could add nothing to the meaning of an affidavit setting forth that a plea was true, which explicitly averred the complete satisfaction and payment of the plaintiff’s claim. We therefore hold that the learned Court committed an error in refusing to strike out the judgment in question. The judgment should he stricken out,.and an order should also he passed directing that the pleas should stand and he taken as filed in this case on the fourteenth of November, 1887; and that they should have force and effect as if so filed on that day.

We have not overlooked the legitimate effect of the sheriff’s returns. They are the official acts of a public officer in the course of his duty; and as such, each return is prima facie evidence against persons not parties to the suit in which it was made. Gyfford vs. Woodgate, 11 East, 297; Hyskill vs. Givin, 7 Serg, & R., 371; Dutton vs. Tracy, 4 Conn., 94; Trigg vs. Lewis, 3 Littell, 129. And in each case in which the return was made, it must be regarded as conclusive, so long as it stands on the record as a valid return. The party affected hy it, however, has the right to question it, hy a direct attack on it, after notice to the sheriff; and if he can prove to the Court that it is untrue, it is the duty of the Court to quash it. We have said that the pleas must he regarded as filed in the suit now before us ; the result is that there are no pleas in the other suit. By long established practice in the Courts of the City of Baltimore, a defendant is not required to plead to a declaration, unless a copy of it has been served upon him. It is evidentfrom the one hundred and sixty-sixth and one hundred and sixty-eighth sections of the Act of 1886, that it was not the intention of the statute to change this practice. If therefore a copy of the declaration was served on the defendants’ attorney in this last mentioned suit, they are in default, but not otherwise.

(Decided 13th June, 1888.)

There is a question to which our thoughts have been somewhat turned; but as it was not argued by the counsel, and was not presented in the Court below, we shall forbear to express an opinion upon it. We mention it in the hope that hereafter it may be discussed before us. It might be supposed that the affidavit mentioned in the one hundred and seventieth section of the Act is required only of a person having knowledge of the facts. An executor would seldom have personal knowledge of his'testator’s indebtedness; surely is not bound by his official duty to have such personal knowledge. ’ Now the query is, whether this section of the Act is to be construed to require a party to swear to a fact which, ordinarily, he could not personally know; unless it receives this construction it does not apply to executors.

Judgment reversed, and cause remanded.

Stone, J., dissented.