Traber v. Traber

Bartol, C. J.,

delivered the opinion of the Court.

This suit was instituted hy the appellant in the Court of Common Pleas of Baltimore City, and was removed to the Circuit Court for Baltimore County, from whose judgment this appeal has been taken.

The declaration was filed under the Act of 1864, ch. 6, with affidavit and account thereto annexed.

The defendant appeared and pleaded:

1st. That he never was indebted as alleged.

2nd. That he did not promise as alleged.

Appended to the pleas was an affidavit made on behalf of the defendant, hy Caroline Traber, “that the above pleas are true, and that he verily believes that he will be able at the trial of the cause, to produce sufficient evidence to support the same.” Issue was joined on the pleas, which was afterwards on motion of the plaintiff, stricken out, whereupon the plaintiff moved the Court to enter judgment in his favor, notwithstanding the pleas “for the reason alleged that there is no sufficient affidavit to the pleas under the 7th section of the Act of 1864, ch. 6.” This motion was overruled hy the Court of Common Pleas. The case was then, at the instance of defendant removed to the Circuit Court for Baltimore County, where the same was tried,' and the verdict and judgment being in favor 'of the defendant the plaintiff appealed; and alleges that there was *3 error in the ruling hy the Court of Common Pleas upon his motion and asks that the judgment he reversed.

(Decided 24th July, 1878.)

It appears however from the record that upon the trial of the case upon its merits, in the Circuit Court to which it was removed, the verdict of the jury was in favor of the defendant. The plaintiff was therefore not injured hy the ruling of the Court of Common Pleas on his motion.

The pleas were valid in themselves, the only objection of the appellant was that they were not verified hy affidavit, as required hy the Act of 1864. But their truth was established hy the verdict of the jury, and the want of an affidavit or the insufficiency' of the affidavit accompanying them became altogether immaterial.

We express no opinion, therefore, upon the question whether the affidavit was or was not in conformity with the requirement of the 7th section of the Act of 1864. The course pursued hy the appellant in joining issue upon the pleas, and the result of the trial upon the merits, preclude him now from raising the question of the regularity or sufficiency of the affidavit, or asking “a reversal of the judgment on account of any defects therein.

If the appellant desired to raise that question on appeal, his proper course was to refuse to join issue on the pleas, and suffer judgment by default. After the verdict against him on the merits, he cannot he heard to say there was no sufficient plea.

Judgment affirmed.