Archer v. State

74 Md. 410 | Md. | 1891

Bryan, J.,

delivered tbe opinion of the Court, as follows, on tbe motion made on behalf of the State to remand the foregoing cause for anew trial:

After the opinion in affirmance of this judgment had been delivered, a motion was made in behalf of the State ■ to remand the cause for a new trial. The motion was founded on the twentieth section of the fifth Article of the Code of Public General Laws. This section enacts that “in all cases where judgments shall be reversed or affirmed by tbe Court of Appeals, and it shall appear to tbe Court that a new trial ought to be had, such new trial shall be awarded. ” Whether “a new trial ought to be liad” in any given case must be determined by the rules and principles of law. The Court must obtain from legal sources the materials on which its judgment is to be founded; that is, from sources of information which the law authorizes and empowers it to seek and examine; the conclusion is then deduced by the law according to established maxims. The law is a system ■of reason which administers justice according to rules which long experience has shown to be best adapted to secure this end in the vast majority of cases. When a result is reached by the application of these rules, it is the duty of Judges to pronounce the decision without reference to their private sentiments, or private information. Justice would indeed be precarious if from sudh cause, or from any other cause, its administration were not conducted according to fixed, steady, established and prescribed canons of decision.

This suit was brought on the official bond given by Archer in February, 1886, and the breach alleged was, that between the time when this bond was given and the eighteenth day of November, 1889, he fraudulently appropriated to his own use large numbers of the bonds and securities belonging to the State, and in his possession as Treasurer. The Circuit Court ruled that the bond was liable for all defalcations committed between these dates, and left it as a question to the jury to find their amount on the evidence in the cause. The jury rendered a verdict for sixty thousand dollars. A motion for a new trial was made by the State, but the motion Avas overruled by a divided Court, and the verdict sustained. An appeal Avas taken by the defendants to this Court, and we have approved the rulings of the Court beloAv, Avhich held that the defalcations up to November the eighteenth, 1889, were covered by the bond; and we have affirmed the judgment. There was an exception in behalf of the State to the refusal of the Court to admit certain testimony, and an appeal on that ground. This matter will be noticed hereafter; but it does not affect the question which we are now considering. If the verdict was erroneous, it is not within the capacity of this Court to correct the error. We have no power to revise the verdicts of juries. The law confides this jurisdiction exclusively to the trial Courts. They have the right to set aside a verdict if they believe it to be contrary to law, or unwarranted by the evidence. But if they permit it to stand, we are obliged to recognize it as correct. We have absolutely no alternative in the matter. Our functions are confined to a review of the questions of law decided by the Court below. This case is'then like many others which are constantly occurring; a judgment has been rendered against defendants, and on their appeal it has been affirmed. The plaintiff having deliberately sued on the bond for certain specified defalcations, and having successfully maintained its legal positions with respect to the liability of the bond to the extent alleged; and having taken the verdict of the jury on the evidence offered to prove the matters of fact in controversy; and the judgment of the trial Court in his favor having been affirmed by the Court of last resort, it now moves for a new trial for 'the purpose of comprehending in this suit additional averments with respect to facts which were as well known to it when the suit was brought as they are at present. We must pause and consider carefully the grounds of this motion, before we give our assent to it. We may well inquire into the rights of the defendants in this behalf; and we may well ask whether the just limit of litigation has not been reached. Expedit reipublicae ui sit finis litium. It has been said that “Justice requires that every cause be once'fairly and impartially tried; but that having been once so tried, all litigation of that question, and between those parties, should be closed forever." No declaration of principle could be more just, and none bas received more universal approval. The plaintiff ought to have included in the suit on the bond all matters of liability which could have been litigated in that suit. The law does not allow two suits, when the whole subject' of controversy might have been settled in one. In State vs. Brown and Brown, Trustees, &c., 64 Md., 204, we said, quoting from the Supreme Court of the United States, in reference to the conclusive effect of a judgment in a former suit: “It extends not only to the questions of fact and of law, which were decided in the former suit, but also to the grounds of recovery, or defence, which might have been, but were not presented.” The plaintiff’s counsel proceeded on the theory that defalcations after the eighteenth day of November, 1889, were not recoverable in this suit; and they brought suit for them on Archer’s second bond. This Court Held that the second bond was void, and that the bond on Avhich the jjresent suit was brought was responsible for Archer’s malfeasance until his third appointment and qualification in January, 1890. The theories of the opposing counsel in this cause were in conflict on almost every question involved in the case; there was contestation and strife at every step of its progress. The result of the litigation has been a disappointment to both sides. We have not sustained the views of the plaintiff’s counsel in respect to the liability of the second bond. But we cannot regard this as a reason for awarding a new trial, in a case, which has been regularly conducted to a final judgment in this Court. Counsel elect the grounds on which they will rest their case, present it in the mode approved by their own judgment, and adduce such testimony within their reach as they see fit to submit to the jury. They are frequently disappointed in the iesult of the suit. But we do not see that the consequences should be visited on defendants without some default on their part. It is a serious penalty to impose on them the burden, expense, and vexation of continued litigation. It has been said in the brief of the plaintiff’s counsel that the verdict for sixty thousand dollars in this caséis “utterly irrational and indefensible,” and that the refusal of the Court below to grant a new trial is a good and sufficient reason for this Court to exercise its “undoubtedpower,” and to perform its “high duty” of awarding a new trial. And we are solemnly adjured to act upon what we c ‘judicially know to be the truth, and to give effect to the plain text of our rule.” And the following extraordinary statement is made: “We lay before you the records of your own Court, and the judgments which you have rendered upon them, and from them we say that the truth stares you in the face, and makes it appear as clear as light, that such a practical perversion of justice as a* judgment for $60,000 for Archer’s confessed embezzlement of $125,000, from 2nd February, 1886, down to 30th January, 1890, should not stand as a sample of Maryland justice in such a melancholy and memorable incident in our State history; but that a new trial ought to be had to rescue the administration of our 1-aw from such a lasting stigma.” We can make due allowance for the earnestness of counsel in" behalf of their clients, and for the depth of their convictions produced by the warmth of their zeal. It. is our part to decide questions before us without any of the excitement, which naturally belongs to the efficient discharge of the duties of the advocate. The verdict in the case comes before us with all the sanctions which the law can give to any verdict. It was duly rendered in a legal and constitutional manner, and was approved in a legal and constitutional manner. Mf the Circuit Court had given the jury erroneous instructions on matters of law, the judgment would have been reversed; but we have no power, whatever, over a verdict regularly rendered upon correct legal instructions. No matter what private opinions we might form as individuals on the merits of the case, we are constrained by our official duty to pronounce the judgment on this verdict which the law has pronounced upon it. We trust that this Court will never be found under the exigencies of any case, supposed or real, attempting to exercise forbidden jurisdiction. The plaintiff’s brief speaks of Archer’s confessed embezzlement of a hundred and twenty-five thousand dollars. We do not see in the record of any of the cases which have been before us any confession of any kind relating to the amount of embezzlement; on the contrary there was vigorous conflict and controversy on this question, as on every other one involved in the cause. The evidence on the subject was fairly submitted to the jury, but they refused to find according to the arguments of the plaintiff’s counsel, and their verdict was sustained by the Court.. If we look at the record of the suit on Archer’s second bond, we find that judgment was rendered for defalcations committed between the eighteenth day of November, 1889, and the thirtieth day of January, 1890, at which, time Archer was qualified under his third appointment as Treasurer of the State of Maryland, and that the amount of the judgment was $12,857.55. This Court held that the second bond was invalid, and that the first bond was a security for all defalcations up to the thirtieth of January, 1890. We thus see that two suits have been brought and prosecuted to a final judgment in the Court of last resort for the purpose of' enforcing a liability which was enforceable in the first suit. The object of the motion in this case is to enable the plaintiff by amending its pleadings to try the whole question of defalcation up to January 30th, 1890; that is, to try again the same questions, which have already been tried in the two suits which have been determined by final judgments in this Court. The result would be, in effect, three suits for the decision of a controversy, which was properly and legitimately, determinable in one suit. The suit on the first bond was tried without the least error in law; everything demanded in that suit has duly and legally passed into judgment. The question of liability up to November the eighteenth, 1889, has been adjudged with as much formality and solemnity as the law is capable of expressing on any subject. And we are asked to order a retrial of these issues, not for any error in trying them, but for the purpose of enabling the plaintiff to combine with them other issues, which ought'to have been united with them in the first instance. There is a maxim of the law, venerable for its antiquity and much esteemed for its wisdom: Nemo debet bis vexari pro eadem causa. We shall refuse to be the first Court to question its authority. The defendants are entitled to its benefit in this case. Further litigation under the first bond would be unwarrantable.

The appeal in behalf of the State did not bring into review any question respecting the liability of the bond; as all its propositions of law in this respect were sustained by the Court below. The State offered to prove that Archer had converted certain bonds to his own use after November the eighteenth, 1889; and this offer was for the purpose of founding an argument that certain other bonds of the same group had been converted by him previously to that date. The Court refused to admit the testimony and we approved its ruling. It was not intended that the proffered testimony should be a ground of recovery ; for it was distinctly understood that recovery was sought only for occurrences before the > said eighteenth day.of November. It is manifest that the State’s appeal from this ruling has no connexion with the merits of this motion.

Counsel have referred to several cases which have arisen under the legislation on this subject, all of which with some slight alteration is embodied in the Code. In Kennerly’s Ex’x vs. Wilson, 2 Md., 245, the action was trespass guare clausum fregit, brought by an executrix to recover damages for injuries to the real estate of the testator committed in his life-time. The declaration alleged damages to the testator in his lifetime, but did not allege damage to the executrix. Because of this omission, the Court below sustained a demurrer to the declaration and rendered judgment for the defendant. This Court affirmed the judgment. On motion, however, it ordered a procedendo. The declaration set out a good cause of action, which could not be submitted to a jury because of a technical error in the mode of laying the damages. The error in no way affected the merits of the case, and was one which the law allows to be corrected by amendment. The motion for a procedendo was under the Act of 1826, chapter 200. The Court said: “In our opinion, the manifest design and meaning of that Act was to extend the powers of the Court to every case which had merits disclosed by the record, but which could not be elicited as the case was then presented.” Earnshaw vs. Sun Mutual Aid Society, 68 Md., 477, was decided on the authority of this case, and is grounded on the same reason. A suit was brought on a certificate of membership in an incorporated mutual aid society. But the declaration was not properly framed, and the certificate though a good cause of action could not be admitted in evidence to the jury under the defective pleadings. This Court sustained the ruling of the trial Court in taking the case from the jury; but held that if the judgment was affirmed, a new trial ought to be ordered notwithstanding the affirmance ; and that, as in this view, it was immaterial to the parties whether the judgment was affirmed or' reversed, the latter course would be adopted. It will be perceived in both of these cases that the plaintiff had stated a good cause of action in the declaration ; hut that in consequence of merely technical impediments, it could not he laid before the jury for their consideration. Parker vs. Sedwick, 4 Gill, 318; and Beall’s Lessee vs. Beal and Hendrixon, 7 Gill, 233, were brought to the Court of Appeals by hills of exceptions on the part of the plaintiffs in the Court below. Procedendo after affirmance was ordered in both of these cases under the Act of 1830, chapter 186. The purpose of this Act was, as stated in its title, to prevent unnecessary accumulation of costs in civil suits. The first section enacts as follows : “That, in all cases of appeals, ór writs of error, prosecuted or brought before the Court of Appeals by the plaintiff,, upon a hill or hills of exception, when the judgment excepted to shall he affirmed, and it shall appear to the said Court that the substantial merits of the case are not determined by the said judgment, the said Court of Appeals shall and may, in their discretion, direct their clerk to return the transcript of the record to the clerk of the County Court which gave the judgment, with a, writ of procedendo to the Judges of said County Court, commanding them to proceed in such action, and to a new trial thereof, in the same manner, as if no trial had taken place, or any appeal had been prosecuted, or writ of error'brought; and the opinion of the Court of Appeals shall he conclusive in law as to the question by them decided; and the said County Court shall thereupon proceed in such action by amendment of pleadings, or otherwise, in manner and form as is now practiced in cases where writs of procedendo issue under the existing-laws ; provided, that' nothing herein contained shall he construed to authorize the return of any transcript in any cause where the judgment of the Coiirt of Appeals would he a bar to a new action brought upon the same cause.” Where the plaintiff could bring a new action notwithstanding the judgment of the-Court of Appeals, tlie Court was authorized to save him this expense and delay hy ordering a new trial, Avhen the substantial merits of the case had not been determined. In Beall’s Lessee vs. Beall, being all ejectment case, the plaintiff could have brought a new action. And it is evident that a new action could have been brought in Parker vs. Sedwick. In fact this Court would have had no right to order a new trial in either case, unless the plaintiff had the right to bring a new action. This is evident from the terms of the Act of Assembly, and was so stated in commenting on Parker vs. Sedwick, by this Court in Farmers’ Bank of Md. vs. Bowie, 4 Md., 296, where a new trial was refused after an affirmance on plaintiff’s appeal; although in the Court’s opinion the substantial merits of the case had not been determined by the judgment.

There is another case which we will notice, although it was not mentioned in the argument. In State vs. Baltimore and Ohio Railroad Co., 48 Md., 49, the action was brought to recover the tax levied under the Act of 1812, chapter 284. It was contended in behalf of the railroad company that the exemption from taxation under the eighteenth section of its charter extended to and covered all its property. The case was tried before the Court below, without the intervention of a jury. The Court rendered a verdict and judgment for the defendant; thus exempting all its property from taxation. On appeal, this Court decided that the gross receipts derived from all properties and investments held and owned by the railroad under franchises granted subsequently to its Act of incorporation, and upon which no exemption from taxation was 'engrafted, were liable to the tax levied by the Act of 1812. The prayers on the part of the State did not present propositions of law in accordance with the views of this Court, and were therefore properly rejected by the Court below. But a very palpable error in law was committed by the trial Court in holding that the railroad’s property was entirely exempt from taxation ; and this Court said that if it had been obliged to affirm the judgment below, it would have, remanded the case for a new trial. There were, however, other errors which made it necessary to reverse the judgment,, and so the Court did not have occasion to exercise the power in question. Other cases have been cited in which new trials have been refused by this Court. Their facts were different from those appearing in this case, and their application to the present question consists chiefly in showing how firmly this Court has adhered to the rule of confining its attention to the record. We quote from McCann, et al., Adm’rs, &c. vs. Sloan & Calwell, 26 Md., 82 : “The fifth Article of the Code, sec. 16, enacts, that in all cases where judgments shall be reversed or affirmed by the Court of Appeals, and it shall appear to the Court that a new trial ought to be had, a writ of procedendo shall issue. ’ It is obvious from the language of this section, as well as the final character of decisions in this Court, that the propriety of a new trial must appear from the record 'before the Court, at the time of the reversal or affirmance of the case under consideration. Any other construction would convert- this Court into a tribunal of original, instead of appellate jurisdiction. ”

The refusal of the motion for a new trial after affirmance was founded on this rule in Watchman & Bratt vs. Crook, et al., 5 Gill & J., 268 ; Kilgour vs. Miles & Goldsmith, 6 Gill & J., 274; and Lester vs. Hardesty, 29 Md., 55.

In the case at bar the declaration aptly, properly and in. due technical form set forth causes of action, and averred that they were recoverable from the defendants under Archer’s first official bond. The questions of law and fact arising on these averments have been decided according to the established course of proceeding, and judgment has been duly and regularly rendered. Nothing more can he suggested which is necessary to the validity of this judgment as a final settlement of the questions in the cause. No principle or rule of practice will authorize another trial of these issues,. If we should decide otherwise we should destroy confidence in the conclusiveness of judgments, and greatly multiply the evils of litigation, by introducing into the administration of justice uncertainties and embarrassments which never existed béfore. We have nothing to do with the supposed hardship of the case ; but it must be evident that the hardship is not entirely on one side. When Archer’s sureties executed this official bond, they had a most just and reasonable expectation that their liability would not extend beyond the period of two years, with the addition of the short time allowed by law for the qualification of a successor. Circumstances, which are well ■known, continued their liability for two years longer; and this occurred without any default on their part. The law operated against them •with great severity, but it was enforced. On the present occasion it operates to protect them, and it will likewise be enforced now.

(Decided 23rd October, 1891.)

Motion overruled.