Hunckel v. Voneiff

• Citation: 17 A. 1056,69 Md. 179
• Parties: HUNCKEL v. VONEIFF.
• Decision Date: 17 January 1889
• Court: Maryland Court of Appeals

17 A. 1056

69 Md. 179

HUNCKEL v. VONEIFF.

Court of Appeals of Maryland

January 17, 1889^[1]

On rehearing. For former opinion, see 14 A. 500.

MILLER J.

A motion for a reargument has been made in this case, and counsel have asked that it be had before a full court. The case itself, with two others bearing upon the same general subject, was most elaborately argued in the first instance was most carefully considered, and the opinion heretofore filed expresses the deliberate judgment of four of the six judges who heard it. The constitution provides that four of the judges of the court of appeals shall constitute a quorum that no case shall be decided without the concurrence of at least three; and that the judge who heard the case below shall not participate in the decision. Const. art. 4, § 15. It will be thus seen that it is seldom practicable or possible to have a full court for the hearing of a case; but here six judges sat at the hearing, the case was disposed of by a quorum of four, and there is not the least probability that a different conclusion or result will be reached if the case be reargued before a full bench of eight. The motion is therefore overruled, and would need no further notice, but for the fact that in their reasons in support of it counsel have said the decision in Maulsby v. Reifsnider, 14 A. 505, rendered on the same day, is utterly inconsistent with it, and the court is thus placed in the position of having given two irreconcilable judgments upon the same subject, on the same day, because "the most subtle and ingenious mind that was ever trained in the law can suggest no sound reason why an attorney should possess a more qualified privilege than a witness." This court always receives with deference and respect the opinions, as well as the arguments, of eminent and learned lawyers of our Maryland bar, but it is seldom we are favored with one couched in such peremptory and unqualified language as this. One reading it would suppose that it was certain that the privileges of advocates and witnesses had always been regarded as standing upon precisely the same ground, that no distinction ever had been or could be drawn between them, and that no judge had ever ventured to express or suggest a doubt upon the subject. But this is a mistake. Kennedy v. Hilliard, 10 Ir C. L. 195, was a case where an unsuccessful attempt was made to sustain an action against a party for a libel contained in an affidavit made by him as a witness, and where the court had expunged the irrelevant statement from the affidavit as prolix, impertinent, and scandalous. It was decided by the Irish court of exchequer in 1859. The opinions delivered by the several judges seem to be quite as able and well reasoned as any to be found in the English decisions on the same subject, and have, in fact, been specially commended by English judges. GREENE, B., in his opinion, after stating the contention of counsel that the qualification of pertinency or relevancy which is attached to the privilege in case of words spoken by an advocate in behalf of his client applies also to words spoken or written in the course of a judicial inquiry by a party or a witness says: "Now, assuming the inquiry as to relevancy to be open and material, in the case of language used by a counsel, as in Brook v. Montague ^[1] and Hodgson v. Scarlett, ^[2] I cannot find any satisfactory authority for the position that...