Hieston v. National City Bank
Decision Date | 02 April 1918 |
Docket Number | 11. |
Citation | 104 A. 281,132 Md. 389 |
Parties | HIESTON v. NATIONAL CITY BANK OF CHICAGO. |
Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; Chas. W. Heuisler, Judge.
"To be officially reported."
Action by the National City Bank of Chicago, a corporation, against Grace Hieston. Judgment for plaintiff and defendant appeals. Affirmed.
Plaintiff's second prayer, referred to in the opinion, is as follows:
The plaintiff, National City Bank of Chicago, prays the court to instruct the jury that if they shall find that on or about the 5th day of January, 1914, one Walter Hieston was indebted to the plaintiff, National City Bank of Chicago, in an amount exceeding $5,000, and that the plaintiff was then about to enforce by suit its claims against the said Walter Hieston and that on or about the 5th day of January, 1914, the defendant, Grace Hieston, executed the following guaranty:
And that upon receipt of said guaranty the plaintiff notified the defendant by letter dated January 5, 1914, that the plaintiff, in consideration of the aforesaid guaranty, agreed that it would start no suit looking toward the recovery of a judgment on the indebtedness due by the said Walter Hieston to the said plaintiff for a period of 30 days from the 5th day of January, 1914; and if the jury shall further find that the plaintiff, National City Bank of Chicago, relying on said guaranty, took no proceedings looking toward the recovery of a judgment on the indebtedness due by the said Walter Hieston to the said plaintiff, for a period of 30 days from the 5th day of January, 1914, and that the said Walter Hieston, after the expiration of said 30 days, did not and has not at the present time paid his said indebtedness, and that said indebtedness exceeds the sum of $5,000, then the verdict of the jury must be in favor of the plaintiff, National City Bank of Chicago, for the sum of $5,000, with interest in the discretion of the jury from such time as they shall find the plaintiff made demand upon the defendant to pay said indebtedness to the extent of $5,000.
(Granted.)
Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.
Herbert B. Stimpson, of Baltimore, for appellant.
L. Vernon Miller and George Weems Williams, both of Baltimore, for appellee.
This is a suit upon a contract of guaranty, dated the 5th day of January, 1914, and executed in the city of Chicago, in the state of Illinois, by the defendant to the plaintiff. The appellant, the defendant below, is a married woman, temporarily residing in Baltimore city, in this state, but her husband is a citizen and a resident of the state of Illinois. Service of summons was obtained upon her in this state, where she had been residing, on or about the period of three years, prior to the institution of the suit. The appellee, the plaintiff below, is a nonresident corporation, duly incorporated under the laws of the United States, and carrying on the banking business in the city of Chicago, in the state of Illinois. The contract of guaranty, is attached to and made a part of the declaration, and is as follows:
The declaration contains three counts in assumpsit, and a fourth count declaring upon the guaranty. This count avers, in substance, that Walter Hieston, the husband of the defendant, was indebted to the plaintiff in a large amount, exceeding $5,000, and the plaintiff was then about to enforce by suit its claim against him, and thereupon the defendant executed the guaranty set out and stated in the declaration. It further avers that upon receipt of the guaranty the plaintiff notified the defendant by letter dated January 5, 1914, which letter was duly received by the defendant, that the plaintiff in consideration of the guaranty agreed that it would start no suit, looking toward the recovery of a judgment on the indebtedness due by the husband to the plaintiff, for a period of 30 days, from the 5th day of January, 1914, that the husband had not paid the whole or any part of the debt due by him, at the time of the execution of the guaranty, and that the debt, exclusive of interest, largely exceeds the sum of $5,000. And that the plaintiff has notified the defendant of this fact, and has demanded the payment by her, but she has failed and refused to pay the same, in accordance with the guaranty. At the trial of the case, in the Baltimore city court, the defendant reserved four bills of exceptions, to the rulings of the court upon the evidence and prayers. There were also other rulings of the court, upon the pleadings and upon a motion to postpone or to discontinue the case; but, as we find no reversible error in the last-named rulings, we will first consider the controlling questions which are presented by the record, in their regular order.
The first exception presents the ruling of the court, in refusing the defendant's motion to postpone the case, upon the ground, that the plaintiff bank could not maintain this action because it had not filed with the secretary of state, prior to the trial, the certificate required by article 23, §§ 93, 94, of the Code. The answer to this contention is very obvious, and that is the bringing of a suit by a National Bank in our state courts cannot be held to be "doing business herein," and that article 23, §§ 93, 94, has no application to a case of this kind. There was no error in overruling and refusing the defendant's motion, set out in this exception.
The second, third, and fourth bills of exception contain the rulings upon evidence. The second and third exceptions embrace the ruling of the court in sustaining objections to the...
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