Thomas v. Mohler

25 Md. 36, 1866 Md. LEXIS 40

• Court: Court of Appeals of Maryland
• Decided: May 16, 1866
• Status: Published

Opinion

Cochran, J.,

delivered the opinion of this Court:

Assuming that the action of the Court in striking out the judgment by default, and entering the judgment by confession, was correct, it is very clear that Mohler was a competent witness for Graff, the other defendant. That point was considered and expressly determined in the case of Barker vs. Ayers, 5 Md. Rep., 202, and is not open to further question.

The motion to strike out the judgment by default was addressed to the discretion of the Court. The -rule of the Court, exhibited in the record, and under which the motion was filed, is explicit in that particular, and wo cannot regard the exercise of that discretion in striking out the judgment as a matter proper to be reviewed here. The appellant, however, does not seriously controvert this proposition, but insists that he was entitled to a joint judgment against these appellees, and that the subsequent entry of the judgment by confession against Mohler, was an infringement of that right. We do not concur in this view. That such would have been his privilege at common law, we do not doubt; the proof of his joint cause of action would have established Ms right to a joint judgment, which neither defendant could defeat hy the confession of a several judgment against himself; and this for the simple reason that such a judgment against one would merge the cause of action and deprive the plaintiff of all remedy against the other joint debtor. The case of Moale vs. Hollins, in 11 G. & J., 11, fully illustrates this rule. But that is not the state of the case here. Immediately after, or about the time the case of Moale vs. Hollins was decided, the Act of 1839, ch. 14, codified in Art. 29, sec. 18 of the Code, was passed, suspending the common law rule hy which the cause of action against one of two joint debtors was merged hy a judgment against the other, and allowing the recovery of several judgments in such eases. The only ground, therefore, upon which the appellant in joint right could insist upon a joint judgment has been removed, and there is no reason for supposing tbat the entry of the judgment hy confession was in derogation of any substantial legal privilege attaching to his claim. We may also add, that the defendant, in the judgment hy confession, was interested in terminating the case against himself so as to prevent a larger accumulation of costs, and it would seem just, as well as proper, that he should have had the privilege of confessing the judgment in order to avoid the expense and trouble incident to tbe trial of the case against his co-defendant. He states in Ms motion to strike out that he desires to confess the judgment for the purpose of saving himself from unnecessary costs, and we have discovered no sufficient reason for overruling such a motion.

(Decided May 16th 1866.)

We concur with the Court below in all the rulings to which these exceptions were taken, and therefore affirm the judgment.

Judgment affirmed.