137 A. 702 | Md. | 1927
Lead Opinion
The single question originally submitted for decision in this case was the ruling of the lower court in permitting the plea of forgery to be filed by the appellee subsequent to her general issue plea upon which the plaintiff had joined issue. On this question we held that there was error in permitting the plea of forgery to be so filed. A motion for reargument in this court having been filed and allowed, the question now presented is: Did the plaintiff, upon the overruling of its motion ne recipiatur
to the plea of forgery filed by the appellee, after duly excepting to such ruling, by replying to the plea of forgery and proceeding with the trial to a final conclusion on its merits, waive its right to have the ruling *130
of the lower court on the motion ne recipiatur reviewed in this court? It is claimed by the appellee that the plaintiff's action in replying to the plea of forgery effectually precluded it from having the ruling on the motion ne recipiatur considered on appeal from the final judgment, and that the only method to have this action reviewed was by refusing to reply and suffering judgment against it. To sustain this contention the appellee relies upon the cases of Traber v. Traber,
In the case of Boteler Belt v. State, 7 G. J. 109, it was said: "We do not think the appellants' counsel have succeeded in distinguishing this case from those which fall within the well established rule that no appeal can be prosecuted to this Court until a decision has been had in the court below which is so far final as to settle and conclude the rights of the party involved in the action, or denying to the party the means of further prosecuting or defending the suit. * * * To permit an appeal from any decision of the court below which does not finally settle the rights of the party, or conclude the cause, would enable either the plaintiff or defendant to protract the suit to an almost indefinite period. If by any allegation that the court has exceeded its power, this Court can be put to an investigation of the case, it is plain the allegation may be made in reference as well to one order as another, and in short, to any and every order, and as the appeal must stay the hands of the court below, the suit would be interminable. * * * It is time enough for a party to apply to this Court for redress when it is ascertained that he is to be injured by the judgment of which he complains. * * * For aught we can learn from the record, the defendants may obtain the final judgment of the court and be entirely discharged from the claim of the plaintiff. Should the result be otherwise when the proceedings below shall be terminated, *131
an appeal will then lie, and all the errors of the court below in the whole progress of the cause will be proper subjects for complaint of the party, and for the correction of this Court." This rule has been re-affirmed and re-stated, in varying language, from the case above quoted to the present time. SeeWelch v. Davis, 7 Gill, 365; Hazlehurst v. Morris,
In the case before us, prior to the lower court allowing the filing of the additional plea of forgery, the defendant was limited to such defenses as were available under the general issue plea which had been previously filed by her. The plaintiff, after the adverse ruling on the motion ne recipiatur as to the plea of forgery, if the contention of the appellee in this case be correct, was compelled to accept the issue of forgery made by the plea, and stand on that alone, or suffer a judgment against it and stake its whole case upon the ruling of the court on the question of law, thereby denying to it the right of showing that the appellee's signature was her genuine signature. In other words, the effect is to require the plaintiff to stand either on the question of law or a question of fact, and to refuse it the right to a review on the question of law, if, having stood on the question of fact, it is decided against it. This would be contrary to the general rule that either party has open to him a review in the appellate court of all adverse rulings of the trial court when properly presented by the record, either shown by the record entries or by bills of exceptions seasonably taken and properly authenticated. Newbold v. Green,
The question of waiver involves the idea of voluntary election, but there can be no question of waiver when the action taken, which is claimed to be a waiver, was done under compulsion; and a party can only be said to have waived a right, under such circumstances as here presented, when he voluntarily takes one position which is inconsistent with a later one which he attempts to assume. In other words, if he takes one position, which is decided to be erroneous, he can only be said to have waived and abandoned that position if his subsequent voluntary action is inconsistent with the position *133 first taken. In the present case, when the plea of forgery was allowed, the plaintiff contended that this defense was not available, because the plea had not been filed within the time prescribed by the statute. Had this position been sustained, no evidence on the issue of forgery could have been presented, but upon the adverse ruling upon this point the plaintiff still had the right to show that the signature of the appellee was her genuine signature. These two contentions are not inconsistent. They were, in effect, saying to the appellee, first, "You have no right at this time to make the defense of forgery"; and, second, "Even if you have, your plea of forgery is not true." These contentions were entirely logical, and were advanced by the plaintiff in proper sequence, first, by denying the defendant's right to file the plea, and, second, by denying its truth. Both might be sound. They are not made in the alternative. It does not present a case where, if one of the contentions is true, the other must be false, but is a case where both could be true.
All of the cases relied upon by the appellee, with the exception of Wilkin Mfg. Co. v. Melvin, supra, arose under speedy judgment acts, which are special statutory provisions and must be strictly followed in order that the parties may avail themselves of the rights and remedies thereby created. In none of them was the question raised as to whether the right of the plaintiff, who was entitled to a judgment and who had seasonably made a motion for such judgment, would be lost by joining issue after an adverse ruling on such a motion by the lower court, in the sense that such ruling could not be reviewed on appeal. They presented cases of a defective defense, by reason of a faulty affidavit or pleas as required by the act, which could have been taken advantage of by the plaintiff by moving in writing, as prescribed, for a judgment in his favor. Failing to take this action, but replying to the faulty or defective pleas, it was held that he had waived his right to insist upon a judgment for want of proper defense, after having replied and the case gone against him on the merits. It will be noted in these cases that the plaintiff was under no compulsion to elect one or the other of the *134 courses open, and he would have been subjected to no penalty had he elected either. Under such circumstances, if he voluntarily decides to proceed as if the faulty affidavit or plea is good, he is held to have thereby waived his objection. The record in such cases shows that the plaintiff did not move for the judgment to which he might have been entitled, but voluntarily decided to treat the pleas or affidavit as legal, and meet the issue thereby raised. On the contrary, the record in the case at bar shows that the plaintiff seasonably made objection to the plea of forgery, and, upon its being overruled, reserved an exception, and then, under pain of a judgment by default against him, and resting his whole case upon the issue of law, was compelled to accept the issue of forgery raised by the plea. There is no legal effect to reserving an exception to the ruling of the court on this plea, for the reason that, if reviewable at all, the action of the court would be shown by the record, without such an exception. But the reserving of an exception does indicate that the plaintiff had no intention of voluntarily abandoning his point by replying to the plea of forgery. In the present case, if the plaintiff, after the additional plea of forgery had been allowed, had done nothing towards having it stricken out, but had replied, thereby assenting to it being properly in the case, he should be held to have waived the question of its legality, and refused the right to raise such question on appeal. Had this been done, the case would have been analogous to those relied on by the appellee.
In the case of Hutton v. Marx, supra, also under a speedy judgment act, the defendant pleaded, to a suit on an open account, never indebted, never promised, and limitations. An affidavit was made to the plea of limitations but not to the other two pleas. The plaintiffs thereon joined issue on the first two pleas and replied to the plea of limitations. Later, by leave of court, the plaintiffs withdrew the joinder of issue and the replication, and moved for judgment by default for want of sufficient affidavit of defense. The act required that a motion in writing should be made for judgment. Instead of moving for judgment in writing, as thus *135
required, the plaintiffs joined issue on two pleas and replied to the third, action obviously not in conformity with the act. By such omission the plaintiffs lost the special benefit which the act afforded. In passing upon the question presented in that case, this Court, speaking through Judge Bryan, said: "We think, therefore, on the authority of Adler v. Crook,
In the case of Stockett v. Sasscer,
What we have said in reference to the cases last above quoted applies to all of the cases relied upon by the appellee arising under the speedy judgment acts. There remains to be considered the case of Wilkin Mfg. Co. v. Melvin, supra, which was a common law action. An analysis of that case shows that a judgment was obtained on May 31st, 1892, and that a scire facias on the judgment for the purpose of renewal was issued May 5th, 1906, which was more than twelve years from the date of the judgment. The defendants summoned under the writ of scire facias entered a plea of limitation. The plaintiff moved ne recipiatur as to this plea, and this motion was overruled. The plaintiff then demurred, and upon its being overruled, replied to the plea and went to trial. At the end of the plaintiff's case the court granted a prayer, at the instance of the defendant. directing a verdict in his favor. From the judgment entered the plaintiff appealed. On the appeal the claim was made in this court that the motion ne recipiatur should *137 have been granted. This Court, speaking through Judge Boyd, held that by the defendant's replying to the plea of limitation, he thereby waived his right to stand on the motion ne recipiatur; and in the course of the opinion it was said: "Now if a plaintiff who has the absolute right to a judgment under the Practice Act, unless pleas and affidavits be filed as required, will waive his right to such judgment by filing a replication to the pleas, upon what principle should a plaintiff be permitted to reply to a plea of limitation, and then, if he loses his case, rely on a motion made to strike it out? How does an appeal from the judgment bring up his motion when he has thus waived it? Surely it cannot be said that this plaintiff was placed in a position in which he had to reply to the plea. The replication to the plea of the statute of limitations alleged that the scire facias was issued before the 5th day of May, 1906, and that the judgment was not of twelve years' standing, etc. The record spoke for itself on those questions, and there could be but one result on that plea, which, if validly in, was a bar to the proceeding. The proper practice would have been to decline to reply, and then, upon judgment being entered for the defendant, an appeal could be taken and the question regularly determined, whether the plea was filed in time. After all, that is the whole case — whether that plea should have been allowed to stand. With it in, the prayer granted by the court was proper, and there was no error in granting it." That case is distinguishable from the case at bar, in that there the identical question was raised by the replication to the plea of limitation as was raised by the motion to strike it out, and if the plea was properly in the case it was a complete bar to the action. The record on its face showed that the judgment was of more than twelve years' standing, and the plea of limitation was a complete defense; and action by the court on that question was as final and conclusive of the whole case, upon the motion nerecipiatur, as it could be upon a hearing after replication. *138
In the present case, if the plea of forgery had not been received, this action would not have been final, because there were still open to the defendant all of her defenses under the general issue plea; and on the other hand, the plea being allowed, as it was, was not final as to the plaintiff, because he was at liberty to show that the plea, although in, was not true.
We are of the opinion that the decision in Wilkin Mfg. Co. v.Melvin was the result of the particular facts of that case; those being that the same and only question which controlled the decision of the whole case was raised by the motion nerecipiatur to the plea of limitation as fully as by a review of the action of the court in directing a verdict for the defendant, and it is not authority for the establishment of a rule in direct conflict with the many decisions of this Court; the rule established by these decisions being, as stated, that every ruling of the trial court which is the proper subject of appeal, and which is presented either by the record or by exceptions seasonably taken and properly authenticated, is open to review in this court on appeal from the final determination of the case.
It was suggested by the appellee that the rule that prayers amounting to demurrers to the evidence, offered by the defendant at the close of the plaintiff's case, are not subject to review on appeal where the defendant offers evidence on his own behalf, is authority for the appellee's contention here as being analogous. This contention is unsound, because the real and substantial reason for that rule is that, after a demurrer to the evidence prayer has been offered at the close of the plaintiff's case and overruled, and the defendant then proceeds to offer evidence, such evidence may, and not infrequently does, supply deficiencies in the plaintiff's proof, and therefore a prayer after the defendant's evidence is in must be based upon the whole evidence and not upon the plaintiff's evidence alone.
It is also urged that, because the Act of 1867, which permits a party demurring to have considered on appeal the questions *139 raised by demurrer even though he plead after the overruling of a demurrer, does not include motions, it is authority for the contention here of the appellee. While it is true that that act, now codified as section 10 of article 75 of the Code, does not include motions, neither does it include orders; and it could not seriously be argued that a defendant who files a plea to the jurisdiction, upon its being overruled, loses his right to have the question raised by such a plea reviewed on appeal in all cases where he afterwards submits to the jurisdiction of the court and the case is continued to a final judgment.
It was said in Gittings v. State,
In the case of Tyler v. Murray,
In the case of Harkness v. Hyde,
It has been called to our attention that a hardship will result from an application of the rules and principles herein affirmed. While such a result is always to be regretted, it is not the province of the Court to make the law so as to prevent an apparent hardship in any given case, but to expound the law and apply it, as found, to the facts shown to exist in each case. It requires no citation of authority to demonstrate that this must be the rule applied; otherwise there would be no stability in the law and no uniform application of it, but each case would ultimately be resolved according to the views, caprice, or even the prejudice, of the judges who are to make the decision in the particular case. In order to obviate the alleged hardship in this case, we would be required, first, to disregard the plain and unambiguous language of the statute, which is that, unless the genuineness of the appellee's signature was denied by her in her first pleading after it was alleged by the appellant, the law takes it as being admitted *141 for the purposes of this case; and second, we would be compelled to disregard or reverse the well settled rule that all errors committed by the trial court are subject to review on appeal from a final judgment when such rulings are shown by the record or properly presented by exception. This we are unwilling to do. No sufficient reason having been shown on the reargument, there is no ground to change our former conclusion.
Former judgment of this court affirmed on reargument, withcosts to the appellant.
Dissenting Opinion
The re-argument in this case was upon a question not suggested or considered when the case was originally heard on appeal. That question is whether the appellant corporation is entitled to have the judgment reversed, because the plea of forgery was not filed at the proper stage of the pleadings, when it voluntarily joined issue on the plea and proceeded with a trial on the merits in which the defense of forgery was sustained by the verdict of the jury. Reversal of the judgment and remand of the case for a new trial, on the ground of the objection to the filing of the plea of forgery, will result in the total exclusion of that issue when the case is retried, although the jury in the former trial found from the evidence that the note sued on was forged. It is now argued that such an unfortunate result can be obviated by the application of a rule which this Court has repeatedly utilized to serve the practical ends of justice under conditions analogous to those existing in this case. The rule thus invoked is undoubtedly technical, but it has been applied to prevent other technical rules from causing manifest injustice.
In Shoop v. Fidelity Deposit Co.,
In support of its conclusion in that case the Court citedTraber v. Traber,
"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 by 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 by affidavit, as required by the Act of 1864. But their truth was established by 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 seventh section of the Act of 1864. The course pursued by the appellant in joining issue upon the pleas, and the result of the trial upon the merits, preclude *143 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 be heard to say there was no sufficient plea."
In Wilkin Mfg. Co. v. Melvin,
After quoting from the decision in Traber v, Traber, supra,
the opinion in the Melvin case proceeded as follows: "So when a defendant offers a prayer at the conclusion of the plaintiff's evidence to take the case from the jury, and it is rejected, if he proceeds with the case and offers evidence himself, the error, if any, in rejecting the prayer, is waived and cannot be reviewed on appeal. Barabasz v. Kabat,
The same principle has been recognized also in National *145 Building Assn. v. Gosnell,
But in the present case the plaintiff voluntarily filed a replication to the plea of forgery, and after a verdict for the defendant on the merits of the issue joined on that defense, the rule of waiver frequently applied by this Court should, in my opinion, prevent a reversal and remand of the case with a view to the exclusion of the issue thus accepted and decided. The exception taken by the plaintiff to the allowance of the plea of forgery could not change the legal significance and effect of his conduct in filing a replication to the plea and participating in a trial on the merits. In order to reserve for this Court's consideration the question as to the defendant's right to file the plea presenting the only issue of fact in the case, the plaintiff should have declined to reply and submitted to a judgment by default, for want of replication, and should then have appealed from that judgment. Not having pursued such a course, the plaintiff should be precluded from questioning on appeal the propriety of the lower court's action in granting leave to file the plea tendering the issue which has been determined by the verdict.
It is said that the cited cases which arose under the practice acts may be distinguished from common law actions, like the one at bar, with respect to the application of the rule upon which the appellee relies. No such distinction was discovered by this Court when it decided the common law Melvin case and cited two practice act cases as being "very analogous." It evidently saw no reason why a motion in a common law suit that a plea be stricken out or not received should be given any higher consideration, in regard to reviewability, *146 than motions for similar purposes in suits under the practice acts. In both classes of cases it was the election of the plaintiff to accept by his replication the issue tendered by the plea and to have it tried on the merits that was held to preclude him from complaining on appeal that the issue should not have been joined. The simple alternative, if the plaintiff desires an appellate ruling on his objection to the plea, is to adopt the method, clearly and repeatedly indicated by this Court, of declining to reply to the plea and submitting to a judgment against him on the issue of law thus presented. This requirement is criticized by the present appellant as subjecting a plaintiff to the hazard of submitting to an adverse judgment on a question of law in order to have that issue reviewed on an appeal which may result in an affirmance. The inconvenience of conducting successive appeals in the progress of the same suit at law is also emphasized. But those considerations should yield to the reasons, founded in elementary justice, which oppose such a consequence to the defendant as the acceptance of the plaintiff's theory will produce. There could be no more serious hardship to a defendant than to go through a trial on an issue of fact involving a meritorious defense, and, after a verdict and judgment in his favor, to be required, as the result of a reversal on appeal, to undergo a new trial in which he cannot make his sole and previously vindicated defense merely because of a technical irregularity in the pleading by which the issue was raised. To avoid such a result it is only necessary to apply the rule now invoked by the appellee and heretofore enforced by this Court in a series of cases from which, in my judgment, the present case is not distinguishable in regard to the principle involved. *147