70 Md. 472 | Md. | 1889
delivered the opinion of the Court.
The question presented by this appeal is important, as it is one of practice and liable to arise at any time in the prosecution of suits. Simply hut precisely stated, it is whether a plaintiff can, after the Court has announced a decision sustaining a demurrer to a pleading, which, in effect defeats the plaintiff’s action, and the entry of demurrer sustained has been made on the docket, but has not been followed by formal judgment for the defendant, dismiss or discontinue his suit; and if, having done so, he brings another suit on the same cause of action, against the same parties, whether the decision of the Court on the demurrer in the former case will sustain a plea of res adjudicata, if md tiel record is replied.
The question arises thus: The appellants, administrators of William A. Staylor, brought suit on the bond of Jane Staylor, administratrix of William Staylor, alleging, as a breach, the non-compliance on the part of Jane Staylor, administratrix of William Staylor, with a decretal order of the Circuit Court of Baltimore City directing the payment of certain moneys to the plaintiffs. Several pleas were interposed, the fourth being to the effect, that in his life-time, and prior to the decree, William A. Staylor had by deed to Jane Staylor transferred to her his interest in the estate of Wm.
The suit, in which this appeal is taken, was instituted in the “Baltimore City Court,” upon the 9th of April, 1887, against the same defendants and on "the same bond. The defendants filed substantially the same pleas. A demurrer to the first and fourth plea having been sustained, upon leave the defendants filed amended pleas, the seventh of which only is involved on this appeal. That plea is res adjudicata, and sets up the action of the Superior Court in the former suit, whereby the demurrer to the third replication to the fourth plea was sustained. The plaintiffs replied nul tiel record; issue was joined and trial had before the Court. Upon that issue the Baltimore City Court found for the defendants, and gave judgment for them, and hence this appeal.
The diminution record brings to us the exemplification of the record of the first suit, which the Court in its opinion says was excepted to by the plaintiffs ££as being more full than it should have been, and as containing certain entries which are deemed inaccurate,” and also a copy of the bill of exception as signed by the Judge, which is as follows: ££At the trial of the issue joined upon the plea of nul tiel record, the defendants offered the following record, (here insert it,) and the plaintiff offered the following testimony which was received subject to exception, (here insert it,) and the Court upon considering the evidence offered, filed the following opinion, (here insert it,) finding the issue in favor of the defendants, to which finding of the Court the plaintiffs excepted, and prayed the Court to sign and seal this their first bill of exception, which is accordingly done this 10th day of December, 1888.”
The appellees insist, that there is no such bill of exception before the Court as to enable the Court to consider and decide the question sought to be raised. The contention is, that exception should have been taken and signed as respects the evidence before the decision rendered; and that as no prayer was offered, there is nothing for the Court to review. It is also argued that the docket entries, upon which the appellant bases his contention that there was 'no judgment upon the de
From this opinion we learn that the docket entries were before the Court, and that they showed that “no formal judgment was entered;” and that the Judge held the entry of demurrer sustained, “was virtually a judgment in favor of the defendants,” and that the formal “judgment could not he so entered because the case was dismissed by the plaintiff.” It thus appears that the Court has, in the opinion sent up, certified what was before the Court in the way of evidence with almost, if not quite, sufficient distinctness to enable us to say whether his judgment in the premises was right. The hill of exception is the certificate of the Judge of the testimony on which he decided, and is not, in any sense, an agreement of counsel, though as matter of courtesy the counsel on both sides are generally allowed to see it, and make suggestions about it. It is .the uniform practice to sign hills of exception, as appears to have been done in this case, leaving documentary evidence to he inserted where the hill of exception indicates it is to go in, which documentary evidence is generally so designated as to leave no question as to what was intended to he inserted. In some respects this exception was, perhaps, a little loose and perfunctory; but still with the aid of the Court’s opinion we can have no doubt that what was really admissible in evidence is properly before us. The evidence of the plaintiff below of the former suit consisted of the original papers and docket entries which were receiva
According to the prevailing practice in this State, the entry of demurrer sustained, is but the announce
We know no reason why the plaintiffs could not do so then, as well as they could have done, if the case had gone to the jury and they refused to answer when called, and before verdict rendered. The Court says “there was no formal, judgment entered because the case was dismissed.” The entry of “demurrer sustained” was not a judgment upon which execution for costs could go; or on which an appeal could have been taken. It did not authorize the extension of the judgment by the clerk as he has it in the exemplification record in evidence; and, therefore, did not possess those elements of a final judgment to make the decision on the demurrer in that case conclusive in any future litigation between the parties. If the Court in the former case had entered judgment on the demurrer, the parties could have appealed and had the question reviewed. Instead of asking that judgment be entered against them that they might aj>peal, they discontinued their suit, that they might further
Judgment reversed, and neto trial ordered.