Thillman v. Neal

Pearce, J., delivered the opinion of the Court. This is an action to recover damages for an alleged assault by the defendant Thillman upon the female plaintiff, Cora I. Neal. The suit was originally instituted in the name of Cora I. Neal, by her husband and next friend, Thomas J. Neal, and the declaration conformed to this titling, .when the case came to trial, May 27th, 1898, on which day, as appears from the docket entries in the case, the general issue plea was filed. On the same day the plaintiff asked leave to amend the declaration by striking out the name of Thomas J. Neal as next friend and by making him joint plaintiff with his wife, Cora I. Neal, which leave was granted and the amendment was made.

The case then proceeded to trial, and the plaintiffs had a verdict for $500 and judgment thereon, from which judgment the defendant has appealed. Two exceptions were taken in the course of the trial, and in order to a clear understanding of the precise point actually presented by the first exception, it is set out in full as follows: “ Defendant’s Bill of Exceptions. “ After the swearing of the jury in this case, and the opening statements of the counsel for the plaintiff and for the defendant having been made before the jury, the plaintiff asked leave to amend the narr. in the following manner: “ The plaintiff moves for leave to amend the declaration by striking out the name of Thomas J. Neal, as next friend, and to make the said Thomas J. Neal, the husband of Cora I. Neal, a joint plaintiff with her. “ Leave granted as prayed. Albert Ritchie. which leave the Court granted, and the amendment was accordingly made, to which the defendant objected, and to which ruling the defendant excepted, and prays the ⁵²⁹ Court to sign this, the defendant’s first bill of exceptions, which is accordingly done this 19th day of September, 1898. Albert Ritchie.” Article 75, sec. 37, of the Code of Public General Laws, provides that if there be a non-joinder or misjoinder of plaintiffs, the Court may allow an amendment by which a plaintiff may be added or stricken out, as the case may require.

When therefore the Superior Court gave the plaintiff leave to make the amendment prayed, it did what the law, in express terms, gave it the right to do, and what the law moreover confided to its discretion, and it has been repeatedly decided that the allowance of an amendment, provided it be within the power of the Court granting the leave, to make it, is not the subject of an exception, nor of review by this Court. Griffee v. Mann, 62 Md. 254 . It will be observed that it was to the leave granted to make the amendment, and to the making thereof, that the defendant excepted, and it is therefore clear that we have no power to review the ruling complained of. But if we had such power, it is settled by the cases of Treusch v. Kamke, 63 Md. 282 , and Condon v. Sprigg, 78 Md. 330 , that there was no error in permitting the amendment.

It appeared, however, from the argument of appellant’s counsel that it was intended by this exception to raise the question of the validity of the judgment rendered on the verdict, by reason of an alleged failure to swear the jury to try the cause as the issues were presented after amendment made, and the language of the exception would seem to indicate that this may have been the purpose, since it is specifically set forth in the exception that the leave was asked and the amendment made “ after the swearing of the jury.” This language may suggest but does not establish that the jury was not again sworn after the amendment was made. “ But the Appellate Court cannot travel out of the record, and will make every necessary intendment in support of the judgment of the lower Court.” M’Mechen v. Mayor, &c., 2 H. & J. 41 . The docket entries show “ May 27, 1898, Jury sworn,” ⁵³⁰ —and this entry follows immediately after the docket entry of the motion to amend, the leave granted, and the making of the amendment. Assuming, but not deciding, that the re-swearing of the jury was necessary to the validity of the judgment if attacked in a proper manner, it is not to be inferred that so learned and so careful a judge as Judge Ritchie omitted to have the jury re-sworn after a change of parties by the addition of a new party plaintiff even if the propriety of doing so were overlooked by plaintiffs’ counsel, and we must presume the jury was re-sworn. This presumption we think is warranted by the record.

The fact that the amendment was made after the swearing of the jury — as appears from the bill of exceptions — does not warrant an inference that they were not subsequently re-sworn, especially when the docket entry showing that they were sworn follows the docket entry of the amendment made. It must be borne in mind that in such a case, a docket entry of the first swearing would be unnecessary because the second swearing to try the issues between the then parties would be