Darby v. Montgomery County Nat. Bank, 5805.

• Decision Date: 30 October 1933
• Docket Number: No. 5805.,5805.
• Citation: 63 App. DC 313,72 F.2d 181
• Parties: DARBY v. MONTGOMERY COUNTY NAT. BANK OF ROCKVILLE, MD.
• Court: U.S. Court of Appeals — District of Columbia Circuit

63 App. DC 313, 72 F.2d 181 (1933)

DARBY v. MONTGOMERY COUNTY NAT. BANK OF ROCKVILLE, MD.^*

No. 5805.

United States Court of Appeals for the District of Columbia.

Argued October 4, 1933.

Decided October 30, 1933.

Rehearing Denied February 5, 1934.

On Rehearing June 25, 1934.

Lucien H. Mercier, of Washington, D. C., Bessie D. Darby, pro se, for appellant.

E. C. Brandenburg and Louis M. Denit, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

GRONER, Associate Justice.

Appellee, which is a national bank located at Rockville, Md., secured a judgment against appellant and her husband on a joint promissory note discounted by the bank at the request of the husband. Appellant's husband made no defense. Appellant, however, denied having signed the note or having authorized anyone to sign it for her. The case was submitted to the trial court on a written stipulation waiving a jury, and judgment went for the bank, and from this judgment this appeal is taken.

The record contains what purports to be a bill of exceptions, including a narrative statement of the evidence, but an examination of the same shows that no exception was taken in the progress of the trial to any ruling of the court, nor was one taken to the finding of the court at the conclusion. "A bill of exceptions is not valid as to any matter which was not excepted to at the trial. * * * And it cannot incorporate into the record nunc pro tunc as of the time when an exception should have been taken, one which in fact was not then taken." Fleischmann Const. Co. v. United States, etc., 270 U. S. 349, at page 357, 46 S. Ct. 284, 288, 70 L. Ed. 624.

The statute in the District of Columbia governing the procedure in the trial of a cause by a court on a waiver of jury and declaring the effect of the court's finding, either general or special, is the same as the statute applying to other federal courts outside the District, except that in the case of the latter the act was amended in 1930 (46 Stat. 486 28 USCA § 773) providing that an oral stipulation when entered of record shall be as binding as one in writing. See Act March 3, 1863, 12 Stat. 762, c. 91, section 72, tit. 18, D. C. Code 1929. See as to Federal District Courts, Act March 3, 1865, § 4, 13 Stat. 501, section 649 R. S., as amended by Act May 29, 1930, 28 USCA § 773. Under these sections the trial judge assumes, in addition to his judicial duties, the function of a jury, and passes on both the law and the facts. His finding on the facts, if general, has the same effect as the verdict of a jury, and the effect of the verdict of a jury is to foreclose all disputed, as well as all undisputed, questions of fact, unless challenged by a motion for binding instructions at the close of the case. Bank of Waterproof v. F. & D. Co. (C. C. A.) 299 F. 478, 481.

We have in the District of Columbia a companion statute (tit. 18, § 73, D. C. Code 1929, 31 Stat. 1201, § 71) regulating proceedings for the preservation of questions of law for review on appeal from the judgment of a court without a jury, and it provides that in such cases "an exception may be taken to any ruling of the court during the hearing and to such finding on the ground that the evidence was insufficient in law to justify it, and may be stated in a bill of exceptions as in case of a jury trial."

This section is intended to provide the requisites and manner of review in the appellate court. It insures re-examination of the rulings made by the trial judge in the course of the trial in every case in which an exception is duly taken to the ruling and afterwards embraced in a proper bill of exceptions, and it further provides the mode of challenging the sufficiency of the evidence and of obtaining a review if the decision is adverse. The usual and proper method to secure this benefit of the statute is by motion for judgment and an exception to its refusal. Only in this way can this court determine whether all the evidence is sufficient to support the judgment of the trial court.

Here we have neither motion for judgment nor exception to any ruling of the court below, and the record shows nothing more than that after the submission of the whole case to the judge without argument and after the decision or finding of the judge had been announced, counsel for appellant stated an intention to appeal.

It is, of course, important and desirable that there should be preserved to parties submitting a cause to trial the right and benefit of a review in an appellate court and perhaps it may be fairly said that, where the parties waive a jury, motions of form or technical exceptions to specific rulings are unnecessary and are useless formalities and that an intention to challenge the judgment, however expressed, is enough, but if this view is to prevail, it should be by legislative enactment and not by action of the courts in setting aside rules and practices established by statute and approved and followed over a long period of years.

As there is no bill of exceptions in the present record which we may notice, there is nothing which we may review and therefore it follows that the judgment of the lower court must be and is affirmed.

Affirmed.

It is fair to counsel who argued the case in this court for appellant to say that he was not of counsel in the trial court.

On Rehearing.

In June, 1931, Montgomery County National Bank of Rockville, Md., brought action against John Gardner Darby and Bessie D. Darby (his wife) to recover $12,324 claimed to be due on their promissory note held by the bank. Darby made no defense, but his wife (appellant), in August, 1931, filed her separate plea supported by affidavit in which she alleged she never signed or promised to pay the note, either jointly with any other person or severally, or in any way became a party to it. There was a stipulation waiving a jury. On the trial, the bank called John G. Darby as its first witness, and the note sued on was handed to him, and he was asked to say whether or not the signature thereon was that of his wife, but he refused to answer the question on the ground that his answer might tend to incriminate him, and likewise refused to answer when asked if he had presented the note to the plaintiff bank as bearing the genuine signatures of himself and his wife. The note was then introduced in evidence, her counsel not objecting, and Mr. Hunter, president of the bank, testified that he knew John G. Darby, who had been an assistant cashier in the bank for many years; that the note had been handed to him as president of the bank by Darby as being the genuine note of himself and his wife; that the note was for an amount aggregating the principal of several notes purporting to have been made by the same parties. The witness, however, did not know the genuine signature of Mrs. Darby, and was unable to testify that the signature on the note was her signature, but did identify a letter received by him, admittedly written by Mrs. Darby, as follows:

"Please send me a statement of our indebtedness to your bank, together with all information as to the original dates of notes, renewals, curtailments, collateral, etc. Also please advise me what action is absolutely necessary at this time.

"The next time you are in Washington, I would very much appreciate your calling to see me.

"Thanking you in advance for being explicit in this matter, and for a prompt reply, etc."

This concluded the evidence for the bank, and no motion for judgment was made on behalf of Mrs. Darby; and when called as a witness in her own behalf she testified that the note did not bear her genuine signature; that she had never signed it, or any other note to the plaintiff bank, nor had she ever authorized anybody to sign any note or notes in her behalf. She was asked to explain the letter quoted above, and said that she used the expression "our indebtedness" because she was one of the parties to the suit then being brought; that when she wrote the letter she had knowledge of the suit, and that the writing of the letter followed immediately after her husband told her he had been relieved of his duties at the bank; that she signed the affidavit of defense on August 3, some two months after the institution of the suit; and that up until that time she had not disclosed to the bank the fact that her signature on the note was forged. Thereupon the case was submitted without argument, and the following occurred:

"The Court: I find for the plaintiff, in the sum of the amount of this note with interest from date.

"Counsel for Mrs. Darby: We note an appeal, of course.

"The Court: I believe the proper practice is to file a motion for a new trial.

"Counsel: Under the circumstances I thought it was perhaps useless.

"The Court: Then you want judgment to be entered forthwith and appeal noted.

"Counsel: Yes."

Giving effect to all that was introduced in behalf of the bank to show liability on the part of Mrs. Darby, we think there was a complete failure of proof. The bank went into the trial bearing the burden of establishing the allegation that the note in suit was signed by Mrs. Darby or by someone authorized by her to sign it for her. The execution of the note was denied by plea and affidavit, and in such circumstances the universal rule is that the plaintiff has the burden of proving execution by the defendant of the instrument sued on (Sears v. Moore, 171 Mass. 514, 50 N. E. 1027; Austen v. Marzolf, 307 Pa. 232, 161 A. 72; In re Estate of Burke v. Sullivan, 247 Ill. App. 233; Engel v. Schloss, 134 Md. 72, 106 A. 169; Dever v. Silver, 135 Md. 355, 109 A. 67; Roth v. Knights of Joseph Bldg. & Loan Ass'n, 66 Pa. Super. Ct. 413; Conner v. Henry, 201 Iowa, 253, 207 N. W. 119; Fudge v. Marquell, 164 Ind. 447, 72 N. E. 565, 73 N. E. 895; Broadway Bank of Kansas City v. Stroud (Mo. App.) 51 S.W.(2d) 555; Civic Agency v. Kuhn (La. App.) 145 So. 564. The only...