Abbott v. Bowers
| Decision Date | 22 January 1904 |
| Citation | 57 A. 538,98 Md. 525 |
| Parties | ABBOTT v. BOWERS. |
| Court | Maryland Court of Appeals |
Appeal from Court of Common Pleas, Henry D. Harlan, Judge.
Action by Nathaniel B. Abbott against John S. Bowers. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PEARCE PAGE, SCHMUCKER, and JONES, JJ.
J Cookman Boyd, for appellant.
Moses R. Walter, for appellee.
On May 26, 1902, the appellee instituted suit to recover on the promissory note of the appellant for the sum of $2,250, to William Englar, indorsed by him to the appellee. For the purpose of complying with the provisions of the practice act for Baltimore City (being Acts 1886, p. 304, c. 184), the appellee, at the time of bringing the suit, filed with his declaration the affidavit required by the procedure, the cause of action being a promissory note, the protest thereon and a notice to plead. On being summoned the appellant appeared, and filed two pleas, viz., never promised as alleged, and never was indebted as alleged. Subsequently the appellee, by leave of the court, filed an amended declaration, but did not file anew the promissory note and accompanying papers. At the trial the only testimony offered by the parties was that on behalf of the appellee, proving the signature of Englar, the indorser. The appellant thereupon tendered the instruction that "there is no evidence in the case to warrant a verdict for the plaintiff, and therefore the verdict of the court must be for the defendant." The court declined to so rule, and the appellant excepted, and has appealed to this court.
The appellant contends that the promissory note which was the cause of action was not properly in evidence before the court. The only information the record contains as to the form of the application and leave to amend is that set forth in the amended declaration itself. It is there stated that the amended declaration was filed by leave of the court first obtained. There is nothing to show that the application or the leave granted was to plead de novo, as was the case in Mitchell v. Williamson, 9 Gill, 77, where, under such circumstances, it was held that the old pleas must be regarded as withdrawn on the filing of the additional pleas. Nor have we now the same conditions that existed in Gardiner v. Miles, 5 Gill, 94, where, the leave being "to file additional pleas," it was held the...
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