| Md. | Jun 29, 1926
Lead Opinion
On November 5th, 1920, in the Circuit Court for Caroline County, the plaintiff, now appellant, entered a judgment on a promissory note providing for judgment by confession against Nathaniel B. Harper and the defendant (appellee here), Agnes H. Harper. On July 9th, 1921, the appellee filed a motion to strike out the judgment as to her, alleging her signature to the note to be a forgery. After taking testimony, and argument upon the motion, the lower court ordered the judgment stricken out and the case placed on the trial docket, reserving the lien of the judgment. The case was first removed to Cecil County, and then to Queen Anne's County, finally coming to trial at the November term of the circuit court for that county. By the action of the court in striking out the judgment by confession against the appellee and placing the case on the trial docket, it left the declaration standing, and the next pleadings in the course of arriving at an issue between the parties were pleas on behalf of the appellee. On May 16th, 1924, the appellee filed her pleas, which were the general issue pleas, being first, that she never promised as alleged; and, second, that she never was indebted as alleged. On the 15th day of May, 1925, the plaintiff joined issue as to the defendant's first and second pleas, being the general issue pleas. Subsequently, on the third day of November, 1925, by leave of the court, the following supplemental pleas were filed by the defendant: "First, that she never was indebted as alleged. Second, that she never promised as alleged. Third, that she never signed the alleged promissory note mentioned and described in the declaration, and that her alleged signature thereon is a forgery."
On November 5th, 1925, the plaintiff filed two motions: first, that the leave granted by the court to the defendant to file supplemental pleas be rescinded; and, second, that the *360 third supplemental plea of the defendant be not received. Each of these motions was overruled by the court, to which rulings the plaintiff duly excepted, and these constitute the only exceptions contained in the record. Subsequent to the rulings of the court on these motions and the exceptions thereto reserved by the plaintiff, the plaintiff joined issue as to the defendant's first and second pleas, which were the general issue pleas, and replied to the defendant's third plea of forgery by denying that the note is a forgery and by alleging that the signature thereto is the signature of the defendant Agnes H. Harper. The defendant then joined issue on the third plea. The trial was proceeded with, and resulted in a verdict and judgment for the defendant, from which judgment this appeal is taken.
The question presented by this appeal is the correctness of the lower court's ruling in allowing the defendant to file a supplemental plea in which forgery is alleged and the signature of the appellee denied as being her genuine signature. The record discloses that this action of the court was subsequent to the filing of the general issue pleas by the defendant and a joinder of issue by the plaintiff on the general issue pleas.
Article
In the case of Banks v. McCosker,
In this case it is clear that the execution of the note, which is the cause of action filed in the case, is alleged in the pleadings; that the next succeeding pleadings were the pleas filed by the defendant, and if the appellee desired to put in issue the genuineness of her signature to the note, it was incumbent upon her to deny her signature in the pleas originally filed to the declaration. Not having done so, the statute, in unequivocal language, and the numerous decisions of this Court, are clearly to the effect that, by filing the general issue pleas, she thereby admitted the genuineness of her signature, and is thereafter precluded from denying it. It is to be noted that after the general issue pleas were filed by the appellee the plaintiff joined issue as to those pleas. The case was then at issue, and any time thereafter was too late for the defendant to file any additional pleas which would put in issue the genuineness of her signature; and this, too, whether the filing of additional pleas was done with or without leave of the trial court. That court had no power to grant leave to the defendant to file a plea which would have an effect contrary to the plain meaning and intent of the statute. It is not a question of proper or improper exercise of discretion vested in the trial court, but a case where all power to exercise discretion is denied by the statute.
It is contended by the appellee that the provisions of section 39 of article 75, relating to amendments, are sufficient to sustain the action of the lower court. We are unable to assent to such a construction of that section, for the reason that any such interpretation would destroy the force and effect of sub-section 108, section 28, article 75, and would have the practical effect of repealing or nullifying that provision of the statute. The question of whether an alleged partnership is a partnership, an alleged corporation is a corporation, *363 an alleged execution of a written instrument by a certain person is the genuine signature of such person, are admitted for the purpose of the case unless denied by the opposite party in the next succeeding pleading, would no longer depend upon the law as expressed by the legislative enactment, but would depend upon whether or not, at some subsequent stage of the pleadings, the trial court would permit an amendment to the pleas or other pleading which had not before denied the genuineness of the signature, but which would then, by such amendment, for the first time put that question in issue. Neither do we think that the language of section 39 should be so construed. What it does mean is that amendments may be made, in all actions at law, of any of the proceedings, so that the case may be tried on its real merits and the purpose of justice subserved; but it has, and can have, no application to amendments which would nullify unambiguous and explicit provisions of the law. Such cases form an exception, to which the provisions of section 39 have no application. It may be that in this case the strict application of the law imposes a hardship upon the appellee, but any other conclusion would be in clear contravention of the statute and weaken, if not entirely destroy, the effect of many previous decisions of this Court. Entertaining the views herein expressed, we find the lower court was in error in overruling the motions of the appellant, and the judgment must be reversed.
Judgment reversed, with costs to the appellant.
Dissenting Opinion
A judgment by confession against the appellee, entered under an ostensible power in a promissory note, having been stricken out as the result of a hearing on the appellee's motion to that end, alleging that her name appearing on the note was forged, the case was tried before a jury upon that issue *364 and the defense was sustained by the verdict. The only exceptions in the record were taken because the lower court overruled motions that the leave which it had given the defendants to file a supplemental plea, specifically denying her signature to the note in suit, be rescinded, and that the pleas filed in pursuance of the leave be not received. The plea thus objected to was in addition to the general issue pleas, upon which the plaintiff had already joined issue. It was contended by the plaintiff that the court had no discretion to permit the pleas to be amplified in the manner indicated. That contention was made because of the following provision of the Code (article 75, section 28, sub-section 108): "When ever the partnership of any parties or the incorporation of any alleged corporation, or the execution of any written instrument filed in the case is alleged in the pleadings in any action or matter at law, the same shall be taken as admitted for the purpose of said action or matter, unless the same shall be denied by the next succeeding pleading of the opposite party or parties."
The execution by the defendant of the note here sued on was not denied in the next pleading as originally filed, and if the trial court had no power to allow the additional plea by way of amendment, the case must be remanded for a new trial, from which the defense of forgery is excluded, although a jury has found that defense to be valid.
It is provided by section 39 of article 75 of the Code: "In all suits and actions at law, any of the proceedings, including the writ of summons, may be amended so that such case may be tried on its real merits and the purposes of justice subserved; writs may be amended from one form of action to another when the ends of justice require it; and any amendment may be made at any time before the jury retire to make up their verdict in cases of jury trial; and in cases of demurrer and other trials before the court, at any time before judgment is entered."
This provision and the one first quoted are parts of the same Code article, on the subject of pleading, practice and *365
process at law. They should be construed, if possible, as being in harmony, rather than in conflict, and neither should be so applied as to nullify the purpose to which the other is directed. The avowed purpose of the provision relating to amendments is to promote the ends of justice by enabling the courts to bring cases to trial on their real merits. It was the obvious design of the other provision to relieve the plaintiff of the necessity and expense of producing evidence as to particular allegations which the defendant did not intend to dispute. In the absence of a denial by the defendant of an alleged partnership, incorporation, or signature, the fact so averred is directed to be taken as admitted for the purposes of the action. As a regulatory measure it was provided that the denial should be made in the next succeeding pleading. If this case had proceeded to trial without a plea specifically denying the execution by the defendant of the promissory note mentioned in the declaration, the plaintiff would not have been required to prove its execution, and the defendant could not have been permitted to contest the suit on the ground that her alleged signature on the note was not genuine. Banks v.McCosker,