111 A. 822 | Md. | 1920
This record presents some peculiar and unusual conditions. There are four bills of exception in the record, the first three presenting rulings of the lower Court in reference to testimony, and the fourth was to an instruction directing the jury to render a verdict for the defendant. The first exception was taken to the action of the court in overruling the plaintiff's objection to the defendant's exception to and motion ne recipiatur of the deposition of Elijah J. Bond taken de bene esse. That objection was based on certain rules of the Superior Court of Baltimore City but, as we understand the record, the plaintiff's attorney is manifestly under a misapprehension of the application of the rules. Rule 3-A begins by saying, "No demurrer, motion or other paper which may require a hearing by the court in advance oftrial of the whole case on the merits shall be filed until after a copy thereof shall have been served upon the opposing party or parties or counsel of record, or otherwise in accordance with the provisions of Rule 8," etc. What we have italicised is a sufficient answer to the plaintiff's contention. No exception to the execution and return of the commission was filed, but the objection to the testimony of Mr. Bond was that it was not admissible. That did not require a hearing in advance of the trial of the whole case on the merits, but the time to object to the substance of the evidence taken under a commission is at the trial. The recent *109
case of Woodward v. Tyng,
The second exception was to "sustaining said exceptions to said testimony and in granting and sustaining said motion nerecipiatur and in refusing to receive the testimony of said Elijah J. Bond or any part thereof and in refusing to permit said deposition or any part thereof to be placed in evidence or read to the jury." It might be sufficient to say that there is nothing in the record to show the necessity for the use of the depositionde bene esse of Mr. Bond, Sec. 21 of Art. 35 provides for taking the deposition of any witness "to be used as testimony on the trial of such action, in case only of the death of such witness, or on proof to the satisfaction of the court of the inability of the party to procure the attendance of such witness at the time of trial and the probable continuance of said inability until and at the next term, before the court shall permit such testimony to be used". We do not find in the record any statement that the witness was dead, or proof of his inability to attend. In Consolidated Ry Co. v. O'Dea,
But without relying on that, was the court right in refusing to permit the deposition to be read in evidence? A good deal of Mr. Bond's evidence was wholly irrelevant, and the only part of it that could under the plaintiff's claim be said to be pertinent was that in reference to the deeds for and the mortgage on the Madison Avenue property. He testified that he left Baltimore in 1892 and did not come back permanently until 1913, that he only visited Baltimore in that interval three or four times, but there is not the slightest suggestion that he could not have been procured at the hearing by Wilmer, if his evidence was deemed important or desirable. There may be some question about what property is referred to in the other counts, but there can be none as to the fifth and sixth counts, as they refer to No. 1300 Madison Avenue. There are few, if any, instances in the reports of decisions of courts where one property has been more in litigation than that. There was every opportunity, as shown by the records and decisions of this court, for this appellant to present every phase of the cases that was permissible and, in some of them, some points were pressed which had no foundation in law or equity. Speaking then of the Madison Avenue property, this suit is an attempt to continue, or to speak more accurately, to re-open litigation in a way that has no justification under the decisions of this court, whatever may be the rule in any other jurisdiction.
The fifth count alleges that the defendant "did by fraud, fraudulent conspiracy and perjury, dispossess and deprive the plaintiff of his rights in said property, and in furtherance of said object, wrongfully and wilfully, corruptly and fraudulently, repudiate her certain deed of said property to her sister, theretofore duly executed, acknowledged, delivered and recorded, and, in order to perfect said fraud, did wilfully on false testimony and otherwise commit and cause to be committed perjury in a certain suit and suits *111 pending between the plaintiff and defendant in the several courts of Baltimore City". The sixth count alleges that the defendant executed a mortgage on said property, which became the property of the plaintiff, "and that by false testimony, perjury, fraud and conspiracy, said Susan E. Placide did, by abuse of the process of the courts of Baltimore City, cause the plaintiff to lose his property in said mortgage, and to be otherwise injured and damaged".
In the case of Wilmer v. Placide,
Wilmer in his answer denied the plaintiff's ownership of the Madison Avenue property, and alleged that, after the conveyance to the plaintiff by the trustees, she conveyed it away, denied the alleged indebtedness and the agreement as to the occupancy of the house, and that the plaintiff had paid *112 any part of the mortgage excepting a small amount for which credit was given at the time of the assignment to him. On December 28th, 1910, Miss Placide filed a bill against Edwin M. Wilmer, Henry Placide Wilmer and E. Placide Wilmer, sons of Edwin M., and H.V. Morse, husband of a deceased daughter of Edwin M. Wilmer, in which she alleged that Edwin M. had left for record in the clerk's office a deed dated the 28th of July, 1887, by which she was said to have conveyed to her sister, Alice B. Wilmer, the house and lot known as No. 1300 Madison Avenue. She denied that she ever signed such a deed, and alleged that she never heard of it until at or about the time it was put on record, which was on December 8th, 1910. Alice B. Wilmer died intestate on June 29th, 1891, and Edwin M. claimed a life estate in said property as the husband of his deceased wife. A great mass of testimony was taken and there were numerous exceptions filed by Wilmer to the rulings of the court upon the admission or rejection of testimony.
The two cases were consolidated and there was a decree passed which set aside the alleged deed, and the papers in the case were referred to the auditor to state an account as therein directed. Both sides appealed to this court. It will be noticed that the mortgage was given over three years after the alleged deed was made, which deed was not recorded for more than twenty-three years after its date — while the first suit referred to above was pending. The two surviving children of Edwin M. Wilmer filed an answer admitting the allegations of the bill and said they never heard of the alleged deed until shortly before it was recorded, and that they were willing and anxious that it be declared void and of no effect. The testimony showed that Edwin M. Wilmer had drawn the petition to the court and the order thereon for his wife, who was trustee, to loan the money on the mortgage, and that he had drawn a number of papers which showed that the property belonged to Miss Placide. *113
Miss Placide testified that she had frequently signed papers at Wllmer's instance without understanding what was in them, owing to the confidence she then had in him. She denied that she had gone before the justice of the peace before whom the deed to Mrs. Wilmer purported to have been acknowledged, while Mr. Bond, in his deposition, said he was present when she acknowledged it but, as will be seen in the opinion in 118 Md., the conclusion reached by the court was "almost exclusively upon the conceded testimony in the case". In Wilmer v. Placide,
In this State the defense of res adjudicata can be relied on either by special plea or under the general issue plea.Impervious Products Co. v. Gray,
There is nothing whatever in the evidence of Mr. Bond which could reflect upon the allegation in the sixth count as to the abuse of the process of the courts of Baltimore City, quoted above. Without quoting from it, what a malicious abuse of legal process consists of is shown by JUDGE McSHERRY in Bartlett v.Christhilf,
Edwin M. Wilmer was called and, after stating where he resided and that he was the plaintiff, counsel for defendant objected to any testimony on the part of the plaintiff, contending that the matters contained in the declaration had already been passed upon by this court adversely. Over the protest of the plaintiff, the court sustained the objection of defendant and refused to permit the plaintiff to introduce any further testimony in the case. That ruling constitutes the third exception. Then this appears in the record: "The court does not think it is proper and hence will not permit any further testimony to be offered on the plaintiff's part, and you are instructed by the court, when the clerk calls *115
upon you for your verdict in this case, to render it for the defendant. The court has already given its opinion and the case has been discussed from the legal side on a motion that was made during your recess on the part of the defendant to exclude the written testimony offered in the case, so that the court being of opinion that the questions involved in substance in this case have already been passed upon in such a way as not to justify as a matter of law any further proceedings in this case, you will when called upon render your verdict for the defendant. And the jury thereupon rendered a verdict for the defendant." That action of the court is embraced in the fourth exception, and the two exceptions will be considered together. The declaration contains seven counts, only two of which (fifth and sixth) in terms refer to the Madison Avenue property. It is impossible for us to know what evidence the plaintiff proposed to introduce, or to what property he referred. There was no demurrer filed to the declaration or to any of the counts in it. Although, in passing on the admissibility of evidence, the court is required to examine the pleadings in order to ascertain whether the evidence is admissible, as decided in Leopard v. C. O. Canal Co., 1 Gill 222; Marshall v. Haney, 9 Gill 251; and B. O.R.R.Co. v. State, use Woodward,
So although some of the counts are manifestly bad, and it may well be questioned whether any of them are good under the decisions of this court, we do not feel at liberty to now pass on them and, if we found them all bad, to hold that there is no reversible error in taking the case away from the jury, although it is to be much regretted that we feel compelled to do anything which will continue the litigation *116
between these parties. Such cases as Maryland Steel Co. v.Marney,
Judgment reversed and new trial awarded, the appellee to paythe costs. *117