Councilman v. Towson National Bank

Boyd, J., delivered the opinion of the Court. The appellee sued the appellant and her husband, James B. Councilman, in the Circuit Court for Baltimore County, and the case was subsequently removed to the Baltimore City Court. The nar. contains six common counts and three on a promissory note dated March 17th, 1902 — the latter declaring on the note in somewhat different ways and being numbered 7, 8 and 9. A copy of the note was annexed to the declaration and the proceeding was intended to be in accordance with ch. 631 of the Acts of 1894, being what is known as the Practice Act of Baltimore County.

The appellee filed the general issue pleas of never indebted and never promised and two pleas to the seventh, eighth and. ninth counts, denying that she had signed or executed the note mentioned, and alleging that her name was written thereon without her knowledge or authority. Issue was joined on her pleas and judgment by default was entered against James B. Councilman, the same day the jury was sworn in the appellant’s case. A verdict was rendered'against herand from the judgment entered thereon this appeal was taken. There are five bills of exception in the record — four presenting the rulings of the Court as to the admissibility of evidence and the fifth containing the prayers.

We will first consider the rulings on the prayers. The testimony was conflicting as ⁴⁷² to whether Mrs. Councilman signed the note mentioned in the declaration, she having sworn positively that she did not, and there being evidence tending to support her, while Mr. Councilman testified-that she did and there was some evidence sustaining him. The plaintiff produced testimony to show that the note of March 17th, 1902, was a renewal of one of Mr. and Mrs. Councilman originally given in March, 1901, payable four months after date, and renewed by similar notes every four months. The Court granted two prayers on the part of the plaintiff, and rejected’the first and granted the second offered by the defendant.

The first of the plaintiff we do not understand to be questioned, and the second instructed the jury that if they believed that on or about March 20th, 1901, the plaintiff “loaned the sum of five hundred dollars ($500) on a promissory note, which was signed by both of the defendants, payable four (4) months after its date,” and if they found “that no part of the amount so loaned has been paid to the said bank by the defendants, or either of them, but is now due and owing to the said bank, then the plaintiff is entitled to recover the amount so loaned,” even if the jury found that the note offered in evidence was not signed by Mrs. Councilman. 1. The appellant contended there was error in granting that prayer for several reasons. In the first place, it is said that inasmuch as the Act of 1894, ch. 631, requires the plaintiff to “file the bond, bill of exchange, promissory note, or other writings or account by which the defendant is so indebted,” the plaintiff cannot recover upon any other claim, not filed with the declaration. There can be no doubt that a plaintiff is not entitled to recover under that Act, unless the cause of action is filed at the time of the bringing of the suit, but this recovery was not under that Act.

Section 18F of Art. 3 of the Code of Public Local Laws, as enacted by the Act of 1894, entitles the plaintiff (in a suit where the cause of action is a» contract) to a judgment, “to be entered by the Court or clerk thereof on the return day or the first day of the term next succeeding the return day or the term to which the defendant shall have been returned summoned,” unless a plea is ⁴⁷³ filed containing a good defense, and an affidavit is made as therein stated, etc. But section 18G expressly provides that the plaintiff shall not be entitled to a judgment under the preceding sections, unless the plaintiff does certain things therein required, including the filing of the cause of action as above quoted. A copy of the promissory note was therefore not sufficient to entitle the'plaintiff to recover under that statute, and judgment by default could not properly have been entered on that copy, if the defendant had failed to appear at the time fixed by the statute. The action was brought the 13th of October, 1902, the judgment by default against James B. Councilman was not taken until December 8th, 1905, and the verdict was not rendered against the appellant until the 12th of that month. 2. But irrespective of that, when the defendant does appear and complies with the requirements of the státute', the case is then placed on the trial docket of the Court to await trial in its due and regular order. 2 Poe, sec. 419.

It was said of the Baltimore City Practice Act, in McSherry v. Brooks, 46 Md. 103 , that “Where the defendant has appeared and pleaded, and the cause has been brought to trial in regular course, the affidavit filed with the declaration, to entitle the plaintiiff to a judgment by default, as authorized by the Act, in no manner controls the nature and character of the proof that may be offered by the plaintiff in support of his action.” And it was held that if there was any question of the plaintiff’s right to recover on the promissory notes declared on in the first five counts of the declaration there could be none as to their right to recover on the notes under the count on an account stated. There a prayer was offered by the defendant to the effect that inasmuch as the plaintiffs brought their suit under the Practice Act, with an affidavit setting forth the causes of action upon which they grounded their suit (the promissory notes offered in evidence), they could not base their suit on a different cause of action from the one sworn to by them, and the jury must exclude from their deliberations all evidence tending to show an account stated, or tending to prove any other cause of ac ⁴⁷⁴ tion except the promissory notes. This Court held that that prayer was properly rejected. In Laubheimer v. Naill, 88 Md. 174 , the Court, after quoting from McSherry v. Brooks, what, we have quoted above, said that it was equally applicable to the defendant’s affidavit, in respect of the nature and character of proof he may offer in support of bis defense, and added: “The affidavits are in no sense part of the pleadings, and as this case is presented, neither plaintiff nor defendant is in any manner to be bound or prejudied by his own affidavit, nor can either avail himself of any benefit of his adversary’s affidavit, except in so far' as the respective averments of these- affidavits may strengthen or weaken the other testimony of the party making the affidavit.

The plaintiff is at liberty to claim anything recoverable under his declaration, and the defendant may avail himself of any defense and any evidence admissible under his plea, 46 Md. 122 .” In that case the affidavit of the plaintiff only referred to.the annexed promissory note for the sum of $200.00, but at the trial he claimed not only the amount of that note, but $340 on an open account. See also 2 Poe, sec. 421. There can therefore be no doubt that the plaintiff was not limited in its recovery to the promissory note of March 17th, 1902, referred to in the affidavit filed when the suit was brought, but it could “claim anything recoverable” under its declaration. This is so because, although ■the. plaintiff is required to comply strictly with the statute in order to get a speedy judgment under its provisions, yet when the defendant appears and does 'what is required of him to avoid a judgment by default, the case then proceeds as an ordinary action ex contractu, and the claim the plaintiff can make, or the defense the defendant can rely on, depends upon the pleadings and not upon their respective affidavits.

In short, the case is then no longer governed by the Practice Act, but by the ordinary rules of procedure in actions ex coutractu. The fact that the suit was originally brought under the Practice Act was therefore no reason for excluding evidence of the original indebtedness offered under the count for njoney lent. 3. It is also contended there was error in the rulings of the . ⁴⁷⁵ lower Court because it granted inconsistent prayers — the plaintiff's second and defendant’s second. The latter is “The burden is upon the plaintiff to prove that the note offered in evidence and dated March 17th, 1902, was signed by the defendant (record says plaintiff}, and if the minds of the jury are left by the evidence in a state of equipoise on that subject, the.yer-dict must be for the defendant.” We have stated above the substance of that offered by the plaintiff.

The conclusion of the defendant’s prayer is undoubtedly very broad and might have