Wilkin Manufacturing Co. v. Melvin

Boyd, C. J., delivered the opinion of the Court. On the 3rd day of May, 1892, the Wilkin Manufacturing Company, for the use of the Wisconsin Marine and Eire Insurance Company Bank, recovered a judgment- in the Cir ⁹⁹ cuit Court for Worcester County against James T. Young, Charles U. Colbourn, L. Fuller Hall, Lewis Thompson, Charles 0. Melvin and William B. Allwine, partners trading as Young, Colbourn & Company. On April 9th, 1904, that judgment was entered to the nse of The 01 dinar Investment Company.

On the 5th day of May, 1906, a scire facias was issued on it, and the sheriff made the following return: “Charles II. Colbourn, non est; Lewis Thompson, mortwus est; L. Fuller Hall, non est; residue, summoned severally.” There are two exceptions in the record, the first being on a ruling as to the admissibility of evidence and 'the second as to the granting of a prayer at the conclusion of the plaintiff’s case, “that there is no legally sufficient evidence under the pleadings in this case to entitle the plaintiff to recover, and that the verdict must be for the defendant.” A motion to dismiss the appeal was made on the ground that there was no final judgment; hut the docket entries not only show “Verdict for defendant: Motion and judgment on verdict nisi, and for defendant’s costs,” but immediately following’ the second bill of exceptions this entry appears on the record: “Case was then submitted to the jury without any further testimony, and the verdict and judgment being for the defendant, the plaintiff appealed.” There would seem, therefore, to he no question about there having been a final judgment, and the motion to dismiss the appeal will be overruled. A number of motions were filed, as were also demurrers to the pleas. The scire facias was returnable the 3rd Monday of May, 1906, which was May 2'lst.

The record is by no means clear, and it is not easy to understand by whom some of the motions were made. It will be observed that three of the defendants were returned “summoned,” two non est and one moriwus est. The three returned “summoned” were Messrs. Young, Melvin and All wine.

As we understand, when the case was tried (Oct. 26, 1910) Charles O. Melvin was the only defendant then resisting a fiat. ¹⁰⁰ Oil May 21st, 1906, there was a motion for rule security costs. That was the return day, hut the record does not show which of the defendants made the motion. On Inly 20th, 1906, which was apparently during the first week of the second term of Court, there was a motion in writing for a judgment of fiat against Young and Melvin. On October 22nd, 1906, there was a motion to strike out the latter motion, and on October 27th, a rule was laid on the plaintiff to give security for costs by the 2nd day of the next term.

There was a motion by the plaintiff at the next term to strike out the rule security for costs, and a motion by defendants for judgment of non suit for noncompliance with that rule and then a motion to strike out that motion. On February 1st, 1907, the motion to strike out the rule security for costs was overruled and the case continued. On May 8th a bond for security for costs was filed and a motion ne recipiaiur filed as to that. On May 24th, 1907, the motion of October 22nd, 1906, to strike out the motion for fiat was granted, and the motion for non suit for non compliance with the rule security for costs was overruled.

Then for the first time appears an entry of rule plea, which is: “Kule plea by second Monday in June, 1907.” On June 10th pleas were filed. ’ Then on July 8th, 1907,'there was another motion filed by-plaintiff to strike out 'the rule security for costs, to rescind the order of Court laying the defendants under rule plea, to strike out all pleas filed thereunder, and for judgment of fiat for want of plea by the first rule day after return of the writ. On August 15, 1907, “rule plea as to Young appearing • to have been laid improvidently,” plaintiff’s motion of July 8th to strike out pleas and for fiat granted as to Young, but overruled as to Melvin. On September 5th, 1907, a demurrer to the pleas was filed, and on October 29th the demurrer was overruled as to the first and second pleas and sustained as to the third and fourth, with leave -to plead and case continued. On ¹⁰¹ November 9th there was a joinder of issue on defendant’s first plea (mil iiel record) and replication to defendant’s second plea (limitations), and on December 9th joinder of defendant on plaintiff’s replication.

After some other motions and rulings the case was finally tried against Melvin, as we understand, although there is nothing in the record to show what became of All wine. There was apparently a fial against Young, at least the motion for one was granted, although the docket entries do not show it was entered. We find a number of written motions in the record as to the pleadings, which the appeal on the judgment brings before ns and some of them we will speak of. The important question in the case is whether the plea of the statute of limitations should have been received or afterwards stricken out.

At the argument it was said that it had been decided by one or more of the judges of the circuit from which this appeal came that a rule security for costs extends the time for filing pleas until after the rule is complied with. Without deeming it necessary to determine whether such a rale can be made on a non resident judgment creditor, in a proceeding to revive the judgment by scire facias, we have no doubt that a rale security for costs, and a fortiori a motion for such a rule, does not have the effect of extending the time in which to plead. Security for costs is in no manner connected with the pleadings, and a defendant can plead just as well before as after the security is given. It is true that section 9 of Article 24 of the Code provides that, “On such rule being laid, the plaintiff or plaintiffs shall have until the second day of the next term of the Court to comply therewith, and on his or their failure to do so he or they shall be non-suited,” but that is in order to give the non-resident ample time to enable him to arrange for the security, although he may give it the very day the rule is laid.

It may be laid at the appearance term and must he complied with by the second day of the next term, and there could be no possible reason why the pleadings should not in the ¹⁰² meantime be filed. If it extends tbe time for- filing pleas, why does it not'extend tbe time for filing a declaration? It is wholly-unlike a rule bill of particulars, as the defendant may not know what to plead, until the bill of particulars is filed, and if he pleads before one is filed, he waives the right to require it, but that is not the case with a rule security for costs, for the reason that it has nothing whatever to do with the pleadings. It is said in 19 Ency. of Pl. and Pr., 375, that, “Where it is incumbent upon a party to give security for costs, and he does not do so, the other party must make objection by plea in abatement or in some other appropriate manner, and is not excused from pleading or preparing for trial in proper time.” The reference to “plea in abatement” we suppose is made to cases where the security must be given before suit, or something of the kind.

Under the old practice in equity, if the defendant had knowledge of the plaintiff’s non-residence when he answered, or took any proceeding recognizing the plaintiff’s right to sue, the right to lay the rule was waived, but that has long since been changed in this State, and under the statute the rule can be laid at any time before final decree. Watson v. Glassie, 95 Md. 658 . We were not aware until stated at the argument that it had ever been held in any part of this State that the rule extended the time for pleading at law, but as the lower Court apparently acted on that theory we deemed it proper to express our views on the subject. Although we do not agree with that Court as to the effect of the motion just considered, the record shows that it treated the defendant as not under rule plea until that question was finally disposed of.

Hule 20 of the lower Court provides that the second Monday of each month shall be rule day for pleading. Kule 21 provides that, “Whenever a rule is laid to declare or plead, or leave granted to amend, unless otherwise specially provided for, such declarations and pleadings shall be filed and amendments made on or before the rule day'next thereafter. * * * And if either party shall neglect to file his pleadings at the time prescribed, ¹⁰³ judgment of non pros or by default as the case may require, shall, on motion, be entered up against him when the ease is called upon the first calling over the trial docket, unless the Court,, for good cause shown, shall enlarge the rule.” Rule 22nd provides that, “In every case upon the appearance docket, where the defendant has been returned ‘Summoned’ or ‘Notified,’ the plaintiff shall be considered as lying under a rule to declare by the rule day next succeeding the return day in the summons or notice; and in every such case the clerk shall enter, as of course, a rule to declare by the next rule day; but if a declaration be filed on or before the return day in the summons or notice, the defendant shall be considered as lying under a rule to plead by the rule day next succeeding the return day in the summons or notice, and in every such case the clerk shall enter, as, of course, a rule to plead by the next rule day.” There is nothing in the record to show that a rule to plead was laid before May 24th, 1907. That rule was complied with, the pleas were filed on June 10th and & rule replication laid. It is true that the record does not show any entry by which the Court had by order enlarged the rule, but it is manifest that the Court and at least the defendant understood that it was extended, until after1 the rule security for costs was complied with, and when it was given on May 8th, 1907, the motion for a judgment of fiat, filed July 20th, 1906, was still pending.

The clerk was probably also under the impression that the motion for rule security for costs extended the time to plead, for, as we have said, there • is nothing to show that he laid the rule to plead. Rule 21 certainly contemplates a rule to declare or plead as the case may be, in order to put a party in default, and rule 22 does also. There was no declaration in this case, but as the writ of scire facias is, for the purposes of pleas, treated as a declaration, the latter part of rule 22 is part applicable, if any of those rules are, to this case. The rule to plead laid on May 24th, 1907, was apparently laid by order of the Court — at least the motion of the ¹⁰⁴ appellant of July 8, 1907, so states.

Hules .to plead, surely must have some purpose, and if the defendant is to be, held •to account for no.t pleading by the first rule day, and the same rule of Court which fixes the day of pleading requires a rule to plead to be entered, if it is not done, the defendant ought not to lose his right to plead — especially when the Court is of the opinion that under its rules he is not required to plead under the-facts then existing. The plaintiff might have applied to the Court to lay the defendant under rule to plead, and then have had that question reviewed, if it refused and the case finally reached this Court, but as the Court had the power to enlarge the rule for good cause shown, and concluded that there was good cause shown, by. reason of the pending motion for rule security for costs, as its action conclusively shows, it would be a great hardship to hold that merely because there was no formal order passed enlarging the ijule, it could not be considered as enlarged. In Newcomer v. Keedy, 9 Gill, 263 , the plaintiff’s counsel carried the narrs., in several cases instituted by the plaintiff against the defendant, to the clerk’s, office and handed them to the deputy clerk who endorsed them, “Filed the 25th September, 1848.” The counsel then offered to deposit them in the usual receptacle for such papers, and they were handed to him for that t purpose, without any entry on the docket of having been filed. ' The defendant and his counsel called at different times to know if any narr. had been filed, and the