Councilman v. Towson Nat. Bank
| Decision Date | 14 June 1906 |
| Citation | 64 A. 358,103 Md. 469 |
| Parties | COUNCILMAN v. TOWSON NAT. BANK. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; Pere L. Wickes, Judge.
Action by the Towson National Bank against Sadle C. Councilman and another. From a judgment in favor of plaintiff, the former defendant appeals. Affirmed.
Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, PEARCE SCHMUCKER, JONES and BURKE, JJ.
Wm. S Bryan, Jr., for appellant.
E. N Rich and Grason George, for appellee.
The appellee sued the appellant and her husband, James B. Councilman, in the circuit court for Baltimore county, and the case was subsequently removed to the Baltimore city court. The narr. contains six common counts and three on a promissory note dated March 17, 1902; the latter declaring on the note in somewhat different ways and being numbered 7, 8, and 9. A copy of the note was annexed to the declaration, and the proceeding was intended to be in accordance with chapter 631, p. 993, of the Acts of 1894, being what is known as the "Practice Act of Baltimore County." The appellee filed the general issue pleas of never indebted and never promised and two pleas to the seventh, eighth, and ninth counts, denying that she had signed or executed the note mentioned, and alleging that her name was written thereon without her knowledge or authority. Issue was joined on her pleas, and judgment by default was entered against James B. Councilman the same day the jury was sworn in the appellant's case. A verdict was rendered against her, and from the judgment entered thereon this appeal was taken.
There are five bills of exception in the record; four presenting the rulings of the court as to the admissibility of evidence, and the fifth containing the prayers. We will first consider the rulings on the prayers. The testimony was conflicting as to whether Mrs. Councilman signed the note mentioned in the declaration; she having sworn positively that she did not, and there being evidence tending to support her, while Mr. Councilman testified that she did, and there was some evidence sustaining him. The plaintiff produced testimony to show that the note of March 17, 1902, was a renewal of one of Mr. and Mrs. Councilman originally given in March, 1901, payable four months after date, and renewed by similar notes every four months. The court granted two prayers on the part of the plaintiff, and rejected the first and granted the second offered by the defendant. The first of the plaintiff we do not understand to be questioned, and the second instructed the jury that if they believed that on or about March 20, 1901, the plaintiff "loaned the sum of five hundred dollars ($500) on a promissory note, which was signed by both of the defendants, payable four (4) months after its date," and if they found "that no part of the amount so loaned has been paid to the said bank by the defendants, or either of them, but is now due and owing to the said bank, then the plaintiff is entitled to recover the amount so loaned," even if the jury found that the note offered in evidence was not signed by Mrs. Councilman.
1. The appellant contended there was error in granting that prayer for several reasons. In the first place, it is said that, inasmuch as Acts 1894, p. 993, c. 631, requires the plaintiff to "file the bond, bill of exchange, promissory note, or other writings or account by which the defendant is so indebted," the plaintiff cannot recover upon any other claim not filed with the declaration. There can be no doubt that a plaintiff is not entitled to recover under that act, unless the cause of action is filed at the time of the bringing of the suit, but this recovery was not under that act. Section 18f of article 3 of the Code of Public Local Laws, as enacted by the act of 1894, entitles the plaintiff (in a suit where the cause of action is a contract) to a judgment, "to be entered by the court or clerk thereof on the return day or the first day of the term next succeeding the return day or the term to which the defendant shall have been returned summoned," unless a plea is filed containing a good defense, and an affidavit is made as therein stated, etc. But section 18g expressly provides that the plaintiff shall not be entitled to a judgment under the preceding sections, unless the plaintiff does certain things therein required, including the filing of the cause of action as above stated. A copy of the promissory note was therefore not sufficient to entitle the plaintiff to recover under that statute, and judgment by default could not properly have been entered on that copy, if the defendant had failed to appear at the time fixed by the statute. The action was brought the 13th of October, 1902, and judgment by default against James B. Councilman was not taken until December 8, 1905, and the verdict was not rendered against the appellant until the 12th of that month.
2. But irrespective of that, when the defendant does appear and complies with the requirements of the statute, the case is then placed on the trial docket of the court to await trial in its due and regular order. 2 Poe, § 419. It was said of the Baltimore City practice act, in McSherry v. Brooks, 46 Md. 103, that: "Where the defendant has appeared and pleaded, and the cause has been brought to trial in regular course, the affidavit filed with the declaration, to entitle the plaintiff to a judgment by default, as authorized by the act, in no manner controls the nature and character of the proof that may be offered by the plaintiff in support of his action." And it was held that, if there was any question of the plaintiffs' right to recover on the promissory notes declared on in the first five counts of the declaration, there could be none as to their right to recover on the notes under the count on an account stated. There a prayer was offered by the defendant to the effect that inasmuch as the plaintiffs brought their suit under the practice act, with an affidavit setting forth the causes of action upon which they grounded their suit (the promissory notes offered in evidence), they could not base their suit on a different cause of action from the one sworn to by them, and the jury must exclude from their deliberations all evidence tending to show an account stated, or tending to prove any other cause of action except the promissory notes. This court held that that prayer was properly rejected. In Laubheimer v. Naill, 88 Md. 174, 40 A. 888, the court, after quoting from McSherry v. Brooks, what we have quoted above, said that it was equally applicable to the defendant's affidavit, in respect of the nature and character of proof he may offer in support of his defense, and added: In that case the affidavit of the plaintiff only referred to the annexed promissory note for the sum of $200, but at the trial he claimed not only the amount of that note, but $340 on an open account. See, also, 2 Poe, § 421. There can therefore be no doubt that the plaintiff was not limited in its recovery to the promissory note of March 17, 1902, referred to in the affidavit filed when the suit was brought, but it could "claim anything recoverable" under its declaration. This is so because, although the plaintiff is required to comply strictly with the statute in order to get a speedy judgment under its provisions, yet, when the defendant appears and does what is required of him to avoid a judgment by default, the case then proceeds as an ordinary action ex contractu, and the claim the...
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