Fledderman v. Fledderman

Boyd, C. J., delivered the opinion of the Court. This is an action of assumpsit by the appellant against the appellee—the declaration containing six common counts, including one for money had and received by the defendant’s testator for the use of the plaintiff. With the declaration was filed an open account by which the defendant is charged with various items, amounting with interest thereon to $45,-63?.95. The contention of the plaintiff is that he transferred to his father in the autumn of 1899 his merchant tailoring business, including the merchandise, cash, furniture, fixtures and accounts, and assigned a lease, to secure an indebtedness due by him to his father, that it was not intended to be an absolute transfer, and, inasmuch as his father was paid in full what he owed him, he was entitled to be repaid the above amount.

General issue pleas, together with one of payment and one of the Statute of Limitations, were filed. Issue was finally joined and a trial of the case resulted in a verdict for the defendant. The Court granted a prayer to the effect that ²³⁸ a decree passed by the Circuit Court of Baltimore City ou November 12th, 1900, iu a case wherein the appellant was plaintiff, and the defendant’s testator was defendant, was conclusive against the right of the plaintiff to recover. The appellant filed a bill in equity against his father to have the bill of sale, which he had given to secure as he alleged what he owed his father, annulled and set aside, to require an accounting by the defendant, and to compel him to pay over to the plaintiff all sums received by him, and to. restore and to deliver unto him the lease, the possession of the premises, and all goods and property of every description taken possession of under the bill of sale.

It is conceded that the matters involved in the equity proceeding were the same as are now sued for, and the principal question is whether the decree passed in that case was a final adjudica-' tion of the controversy. The appellant contends that the bill was dismissed simply for want of prosecution, while the appellee claims that it was such a final disposition of the case as to make the defense of res ad judicata an absolute bar to this suit. The decree was as follows: “The above cause standing ready for hearing and being considered on bill and answer,’ and the plaintiff not appearing in Court; and no evidence being offered to sustain the allegations of the bill, and the answer of the defendant denying the equities of the hill, it-is this 12th day of November, 1900, by the Circuit Court of Baltimore City, adjudged, ordered and decreed, that the bill of complaint in‘this cause, be and the same is hereby dis- ' missed and that the plaintiff pay the costs.” As it is not denied that the bill in equity was intended to recover the money and property sued for in this case, there is no such question before us as is frequently presented in cases of this character, hut it is simply whether that decree was dismissed for want of prosecution, or whether it was an adjudication by the Court of the questions involved, on the pleadings. There can be no doubt that a decision of a case on the pleadings may be. as effective a bar, as one on testi ²³⁹ mony.

If, for example^ a case is submitted on bill and answer tbé averments in the answer are taken as proven, and hence there can be no logical distinction made between the effect of a decree rendered on bill and answer and that of one entered after testimony is taken. There are certain general principles on the subject of res adjudicata well established in this State, as well as elsewhere, which should be kept in mind in considering the case. In Royston v. Horner, 75 Md., on page 565, as well as in other Maryland eases, the rule as stated by Judge Stoky in his Equity Pleading, sec. 793, has been approved, that: “A decree or order dismissing a former bill for the same matter may be pleaded in bar to a new bill, if the dismission was upon the hearing, and was not in terms directed to be without prejudice. But an order of dismission is a bar only where the Court has determined that the plaintiff had no title to the relief sought by his bill; and therefore, an order dismissing a bill for want of prosecution is not a bar to another bill.” In Martin v. Evans, 85 Md. 8 , the subject was discussed at some length by Chiee Judge McShekky, who stated the general rule to be that: “Whenever a decree dismissing a bill in equity fails to restrict its own .scope, the presumption, according to the great preponderance of decided cases, is, that the issues raised by the proceedings have been disposed of on their merits, and they therefore become res adjudicataAmongst other authorities cited-by him was 6 Ency. of Pl. and Pr.

On pages 992 and 993 of that volume the principle is thus stated: “A dismissal or non-suit may be upon the merits. It then concludes the parties as to all matters involved in the issue, whether they were actually decided or not. * * * At law the presumption is that a non-suit is merely formal unless it be affirmatively shown to have been upon the merits. The same rule- appears to apply generally to judgments of dismissal at law. In chancery the opposite rule obtains, and a general decree dismissing a bill will be presumed to have been upon the merits, and a final settlement of the controversy unless the decree was collusive, although ²⁴⁰ the decree was pronounced by a divided Oourt.

The presumption attaches unless the statements of the record show that the dismissal was for some cause not going to the merits; and of course the whole record may be examined to find out what was actually decided or might have been decided. * * * To obviate the general presumption of dismissal upon the merits, the dismissal should be stated in express terms to be made ‘without prejudice.’ Wherever it is not actually upon the merits, the term is used in order to reserve to the parties the privilege of enforcing their rights by subsequent proceedings and to destroy the effect of dismissal as a bar. An absolute dismissal where the dismissal should have been without prejudice is reversible error; and the appellate Oourt, will either reverse and render a decree ‘without prejudice’ or modify and affirm, or remand the cause with instructions to dismiss without prejudice.” An order was passed on May 21st, 1900, on the bill filed by the appellant against his father, that a receiver be appointed, unless cause to the contrary be shown on’ or before the 16th day of June, 1900. That was duly served on the defendant, who filed in due time an answer to the bill of complaint, which also showed cause why a receiver should not be appointed. On September 7th, 1900, a general replication was filed, and on the 10th of that month the defendant filed a petition stating that he desired to examine witnesses in open Oourt and asking an order for that purpose.

An order was passed granting leave to take testimony as prayed, and that it be taken as required by the thirty-fifth rule of the Oourt, which prescribes the method of taking such testimony. On October 6th, 1900, the defendant filed another petition to the same effect, and the Oourt passed an order granting leave to take testimony 'under that rule, and added: “It is further ordered that the taking of said testimony and the final hearing be and the same are hereby set for the 12th day of Fovember; 1900.” That order was served on the plaintiff’s solicitor on the 9th of October. The docket entries also show this entry: “12 October, 1900. Rule hearing for Fovember ²⁴¹ 12, 1900.

Order fd., copy issued (served on William Colton, soil’.).” The next docket entry is that of the decree above set out. Rule 3 of the lower Court is as follows: “After the general replication has been entered to the answer of the defendant, or if any issue be joined upon a plea, either party may apply to have the case set for hearing; and unless within five days after service of notice of such application leave to take testimony be asked by either party, the case shall be placed upon the trial calendar and be heard upon the pleadings.” The solicitors for the respective parties differ widely as to the proper construction of that rule, and also as to whether it is applicable at all, and, if so, how far applicable to the facts of this case. The record shows that a general replication had been entered, and apparently that the defendant did apply to have the case set for hearing. While the petition of October 6th did not ask to have the case set for hearing, the Court did, on the application to take testimony in open Court, order that it be taken, and that there be a hearing on November 12th.

But if there is any doubt about the effect of that, the entry of October 12, above set out, would seem to establish that it was set for hearing for November 12. It is true there is no written application for that in the record, but the entry of the rule on October 12th—which was three days after the copy of the order of October 6th was served on the solicitor—is there, and the decree itself states that the case was ready for hearing. If we treat the application to have the case set for hearing as pf October 12th, then leave to take testimony was not asked within five days after service of notice of such application, and if we treat it as made on October 6th, application to take testimony was made at the same time. As either party has the right to ask leave to take testimony, while it might be somewhat irregular, it is not perceived how injury is done the other party, if the one who applies to have the case set for hearing at the same time asks leave to.take testimony. ²⁴² The appellant must take one horn or other of the dilemma—either that neither side asked to take testimony, as provided under Fule 3, or that the application of the defendant was sufficient.

Accepting the latter view, the nest question is as to the construction of the rule as .applicable to those conditions. If a case is set for hearing, and leave to take testimony is asked by either party, and neither party takes any, can the Court proceed to hear the case on the pleadings without further delay? We are of the opinion that must be answered in the affirmative. It never could have been intended by the framers of that rule that a party could gain time, simply by asking leave to take testimony and then not taking it.

The object of the rule manifestly was to prevent unnecessary delay, but if it must be construed to have such effect as is contended for it, the result would be the very opposite, of what was intended. The rule, we think, was intended to give either party the opportunity to take testimony, but if not taken, then to dispose of the case on the pleadings. ■ But after all, are we not to be governed by the construction placed on the rule by the judge who passed the decree, if we can ascertain that from the decree, and not by what we may think is a proper construction of the rule? If that judge erroneously construed the rule, and passed a decree which was not authorized, then the remedy of the plaintiff was an appeal. Barrick v. Horner, 78 Md. 259 ; State, use of Brumer, v. Ramsburg, 43 Md. 333 .

If he passed a decree which would bar the plaintiff from bringing another suit, when he was only authorized to pass one that would be equivalent to dismissing the bilk for want of prosecution, the remedy was likewise an appeal. “An absolute dismissal, when the dismissal should have been without jnejudice, is reversible error.” 6 Fncy. of Pl. and Pr., 993. See also Griffith v. Fred Co. Bank, 6 G. & J. 424 ; McElderry v. Shipley, 2 Md. 37 ; McDowell v. Goldsmith, 24 Md. 230 , and Miller’s Eq. Proc., 332. We must therefore ascertain what the judge did by the decree, as what he had the right to do is not now the ques ²⁴³ tion.

If the statement “and the plaintiff not appearing in Court and no evidence being offered to sustain the allegations of the bill,” had not been inserted there would be but little room to question the effect of the decree, under the decisions in this State. It would then have read: “The above cause standing ready for hearing and being considered on bill and answer, and the answer of the defendant denying the equities of the bill,” it is adjudged, ordered, etc. Whatever may be said in Rosse v. Rust, 4 John. Ch. 300, and other cases cited by the appellant, the case of Royston v. Horner, supra, would seem to be conclusive of that question in this State. The Court- quoted from that decree: “This case being submitted on bill, answer and exhibits by agreement of counsel,” and went on to say: “This can mean but one thing, that it was submitted for decision in that way.

And, when submitted in that way, the Court upon the answer of the defendant denying the allegations of the bill could do nothing but dismiss it; for when a case is submitted on bill and answer, all the averments of the answer, whether responsive to the allegations of the bill or in avoidance of it, are to be taken as true.” And then after indicating that the reason the assent of the parties was referred to in the decree was because the costs were disposed of differently from what is usual in a decree on bill and answer which denies the equity of the bill, the Court said: “It may have been without argument, and it is reasonably inferable that it was; but argument is not necessary to make it a hearing', for it is being heard when what the parties say in the bill and