Giessman v. County Commissioners

Markell, J., delivered the opinion of the Court. This is an appeal by the plaintiff from a judgment for the defendant on plaintiff’s refusal to plead further after a demurrer to his replication was sustained. Suit was brought on the common counts in assumpsit, which were later limited by a bill of particulars. The declaration, thus limited, alleges in substance that: When George Giessman, plaintiff’s father, was Treasurer of Garrett County, the County Commissioners issued 109 orders, some in 1918, some in 1919, to creditors of the County for sums to be paid by the Treasurer.

These orders were never presented to “Giessman as Treasurer to pay, but were taken direct to the bank and paid from the funds of the said Giessman,” and the Commissioners refused to allow any credit for said orders, although marked paid by the bank. The 109 orders, listed by name, number, amount, “levy” and year (1918 or 1919), aggregate $11,667.05. “The General Assembly passed a bill in 1939, ordering bills of this character paid with interest. In conformity with said Act, about December, 1942, the Commissioners issued three orders,” for amounts aggregating $11,667.05, for the principal, and one for $15,575.45 for the payment of the interest. George Giessman owed plaintiff “a large sum of money and to pay same transferred the original orders to the plaintiff.” To the declaration, as particularized, the defendant filed five pleas.

The first two are the general issue pleas. The third is a plea of limitations, “that the alleged claim of the plaintiff did not accrue within three years before the bringing of this action.” The fourth is a plea of res ad judicata, that “in No. 44 Trials, June Term, 1927, of this Court,” in a suit between the State of Maryland, for the use of the County Commissioners of Garrett County, plaintiff, and George Giessman and Maryland Casualty Company, defendants, the equitable plaintiff therein, “the defendant in this action,” obtained a judgment against Giessman and Maryland Casualty Company in the ³⁵⁴ amount of $5,303.55; in the trial of that case “all claims and counterclaims then existing between the plaintiff and the defendants, including claim for the orders referred to and listed in the plaintiff’s amended bill of particulars, were presented to and passed upon by this Court and fully and finally adjudicated; said judgment was rendered on the same cause of action mentioned in the plaintiff’s declaration and amended bill of particulars and remained a subsisting judgment” until paid by Maryland Casualty Company, and barred against Giessman by adjudication in bankruptcy upon his petition. The fifth plea is a plea “for defense on equitable grounds.” This plea alleges that the county orders for $11,667.05, “alleged to have been drawn against the levies of 1918-1919,” were issued prior to Giessman’s term of office, and were not drawn against funds for which he was responsible; during his term of office, other orders, in the amount of $12,088.88, were issued by the County Commissioners, drawn against funds over which he had control, and delivered to him for the purpose of taking up orders such as those for $11,667.05; Giessman was not chargeable with the orders for $11,667.05 and was not at any time charged with the amount thereof, but was charged with those for $12,088.88, and at the time of the trial of “the case brought against the bond” of Giessman, No. 44 Trials, June Term, 1927, “as well as in the making of the audit and accounting of said funds, was given full credit for the same, as will appear by reference to the papers and proceedings in said case”; in said case a judgment was rendered against Giessman and the surety on his bond in the amount of $5,303.55, and was later paid by the surety; thereafter, on September 24, 1927, Giessman made application in the district court for Maryland for the benefit of the bankruptcy law and was later adjudicated bankrupt, and “all his-assets, claims and demands of whatsoever nature and kind then and there duly vested in the trustees therein appointed,” and he ceased .to have any interest therein; ³⁵⁵ in his petition in bankruptcy he did not claim that any sum was due him from Garrett County, although other assets and claims were listed; because of said judgment and said bankruptcy proceeding, there could not have been any valid assignment of the alleged orders by Giessman to the plaintiff, even had said orders been the property of Giessman and the defendant been indebted to him on the same, all of which was well known to the plaintiff; notwithstanding the plaintiff knew said orders constituted no valid claim against the defendant and that defendant was not indebted to him in any manner whatsoever, plaintiff, while serving as a member and as president of defendant corporation, in November, 1942, with the collusion and connivance of one other member and without the knowledge of the third, at a so-called special meeting at which only the two were present, with intent to cheat and defraud defendant, placed upon the minute book of defendant a resolution purporting to recognize said orders, together with interest from 1919, as a valid claim against defendant, and thereafter on December 2d, and 3d, 1942, just before relinquishing his office as a County Commissioner, issued to. himself the four county orders mentioned in his bill of particulars, three aggregating $11,667.05, and a fourth, allegedly for interest, in the amount of $15,575.45, one of said orders being drawn against a nonexistent levy and others against levies in which there was not money with which to pay the amount of said orders, and for none of which had there been a levy made as required by law, all of plaintiff’s said actions being illegal, fraudulent and in utter disregard of his duty and responsibility as an officer of defendant corporation and with intent to cheat and defraud Garrett County; thereafter plaintiff, well knowing that defendant was not indebted to him for the amounts of said orders and that his action in issuing them was fraudulent and unlawful, has never presented said orders to the County Treasurer for payment as required by law, and defendant is not indebted to plaintiff. ³⁵⁶ By a “replication,” which apparently comprises three replications and a joinder of issue, plaintiff joined issue on the first two pleas, and alleged (a) in reply to the plea of limitations, that plaintiff ought not to be barred, because Chapter 225 of the Acts of 1939 “gave full force to the orders sued on in.this case”; the County Commissioners “recognized the validity and justice of said orders by passing four orders for the payment of the claim sued for in this case, as [was] their duty so to do, and "could have been compelled to do so by mandamus,” but the Treasurer of the County “illegally refused to pay same”; (b) that the plea of res adjudicata, is not available, for at the trial referred to “the defendant did not know such orders were in existence, had no possible means of knowing, [but] the [equitable plaintiff] did know it had issued them, but dishonestly and knowingly suppressed them”; (c) “that the plea of bankruptcy has no part in this case and can in no way be any benefit to defendant, the State of Maryland has ordered these orders paid With interest. At the time of bankruptcy, the bankrupt did not know that the orders were in existence, and the orders were inore than six years old and [were] not such a claim that the trustee could have sued upon and [were] a non-collectible claim until revived in 1939, and then became due to the legal holder of them on the passage of the said Act.” The amended bill of particulars was filed April 15, 1944.

On April 22, 1944, on a petition of defendant, the Court- ordered that “the time for filing .of pleas to the declaration, or such other action as may' be decided upon, is hereby extended to the 23rd day of May, 1944.” On May 23, 1944, the pleas were filed. In September, 1944, the case was removed from Garrett to Washington County. On December 1, 1944, the replication was filed. On December 4, 1944, defendant- filed a demurrer to the replication.

On December 14, 1944, plaintiff made a “motion in' open court that plea of limitations be stricken from record”; defendant objected “because motion was not timely made.” On December 14, 1944, by ³⁵⁷ leave of Court defendant filed an “additional or sixth” plea, of set-off, with a bill of particulars, showing amounts “received by plaintiff from defendant on excessive and improper expense accounts filed,” aggregating $510.53, and “unearned salary for December, 1942, drawn in advance and not refunded,” $75. On March 26, 1945, the Court’s opinion was filed, and in accordance therewith the motion that the plea of limitations be stricken from the' record was “overruled and denied,” and the demurrer to the replication was sustained, “with leave to the plaintiff to plead further within fifteen days.” On April 26, 1945, “the plaintiff appeared in open courrt by attorney and refused to further plead,” and judgment was entered by order of Court in favor of the defendant. The record does not contain the Garrett County rules of Court. In the appellee’s brief it is stated that Rule 6 is: “Pleas to the jurisdiction, in abatement and of limitations must be pleaded by the rule day unless further time to plead such pleas shall have been given by the Court.” The next “return day” after April 15, 1944, was the second Monday in May, viz., May 8,1944, P. L. L.

(1930), Art. 12, Sec. 51. A demurrer admits facts well pleaded. It does not admit matters that are impossible, or conclusions of the pleader, or matters of law, e.g., the construction of a statute. Poe on Pleading, Tiffany Ed., Sec. 705; Dillon v. Barnard, 21 Wall. 430, 437 , 22 L. Ed. 673 ; United States v. Ames, 99 U. S. 35, 45-46 , 25 L. Ed., 295 .

As the demurrer to the replication mounts to the first error in pleading, it presents the question of the sufficiency of the declaration, as particularized. Perhaps the declaration should be held insufficient for lack of any averment showing that plaintiff is bona fide entitled to his claim “by assignment in writing signed by the person authorized to make the same.” Code, 1939, Art. 8, Sec. 1; Tradesmen’s National Bank v. Green, 57 Md. 602 . As such an omission could readily have been corrected by amendment, we shall assume, without deciding, that ³⁵⁸ such an assignment in writing is implied in the allegation that the father “transferred” the original orders to plaintiff. The gist of plaintiff’s claim may be shortly stated.

In a word, plaintiff, as his father’s assignee, sues to recover, with interest, $11,667.05, paid by the father for defendant and not repaid or credited to the father by defendant. The form of the “orders” of the County Commissioners is not set out in the pleadings. Nor is it prescribed by statute. Before 1939 there seems to have been no express statutory provision for such instruments in Garrett County.

In other counties, long before 1939, statutory provision was made for payments by County Treasurers or Tax Collectors on “orders” {e.g., Baltimore County, Acts of 1876, Ch. 179; P. L. L. [1930], Art. 3, Sec. 166), “drafts” (Allegany County, Acts of 1910, Ch. 45, P. L. L., Art. 1, Sec. 106) or “orders or warrants” (Washington County, Acts of 1878, Ch. 3; P. L. L., Art. 22, Sec. 153) of the County Commissioners. No doubt, in Garrett County and other counties, “orders” or “warrants” were long used without express statutory authority. Dillon on Municipal Corporations, 5th Ed., Sec. 851; McQuillin on Municipal Corporations, 2d Ed., Revised, Sec. 2401. “A municipal warrant or order is an instrument generally in the form of a bill of exchange or order drawn by an officer of a municipality upon its treasurer, directing him to pay an amount of money specified to the person named, or his order, or bearer.” McQuillin, ibid., Sec. 4200. Such instruments are not negotiable, but are subject to all the equities existing or attached to the original transactions.

Ibid.; Dillon, ibid., Sec. 856; Wall v. Monroe County, 103 U. S. 74 , 26 L. Ed. 430 . Cf. Tradesmen’s National Bank v. Green, supra. They are “vouchers for moneys due” and, in a sense, “certificates of indebtedness.” Dillon, ibid., Sec. 850.

But a prohibition of issuance of “any form of certificate of indebtedness” may be coupled with a requirement that “all claims shall be paid by warrant issued against ³⁵⁹ some specified fund otherwise unappropriated.” P. L. L., Art. 17, Sec. 326; Act of 1900, Ch. 140; Prince George’s County. In Garrett County in 1890 it was provided that the treasurer “shall exhibit his vouchers for his disbursements, which vouchers after cancellation shall be retained by said treasurer” (Acts of 1890, Ch. 566, Sec. 47; P. L. L., Art. 12, Sec. 104), and the money received and deposited by the treasurer shall be drawn only by the treasurer and “only for claims which may have been levied and ordered paid by the county commissioners.” Acts of 1890, Ch. 566, Sec. 48; P. L. L., Art. 12, Sec. 105; Acts of 1935, Ch. 534. In 1939 “vouchers” was changed to “vouchers and orders”; in Section 83 of Article 12 it was provided that the County Commissioners “shall pay all bills by orders made payable to whomever due, and said orders shall be delivered directly to the Treasurer