Farmers' & Merchants' Nat. Bank of Cambridge v. Harper

• Decision Date: 29 June 1926
• Docket Number: 26.
• Citation: 137 A. 702,151 Md. 358,153 Md. 128
• Parties: FARMERS' & MERCHANTS' NAT. BANK OF CAMBRIDGE v. HARPER ET AL.
• Court: Maryland Court of Appeals

137 A. 702

151 Md. 358, 153 Md. 128

FARMERS' & MERCHANTS' NAT. BANK OF CAMBRIDGE v. HARPER ET AL.

No. 26.

Court of Appeals of Maryland

June 29, 1926

On Reargument, May 6, 1927.

Appeal from Circuit Court, Queen Anne's County; Thomas J Keating and Lewin W. Wickes, Judges.

"To be officially reported."

Action by the Farmers' & Merchants' National Bank of Cambridge against Nathaniel B. Harper, also known as N. B Harper, and another. Motion of defendant Agnes H. Harper to strike out judgment as to her was granted. Judgment for defendant, and plaintiff appeals. Reversed.

Urner J., dissenting. Offutt, J., dissenting on reargument only.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and WALSH, JJ.

W. Brewster Deen, of Denton, and A. Stengle Marine, of Cambridge (Fred R. Owens and William J. Rickards, both of Denton, and J. H. C. Legg, of Centerville, on the brief), for appellant.

T. Alan Goldsborough, of Denton, and W. Mason Shehan, of Easton (E. H. Brown, Jr., Madison Brown and Harper & Horney, all of Centerville, on the brief), for appellees.

DIGGES J.

On November 5, 1920, in the circuit court for Caroline county, the plaintiff, now appellant, entered a judgment on a promissory note providing for judgment by confession against Nathaniel B. Harper and the defendant (appellee here) Agnes H. Harper. On July 9, 1921, the appellee filed a motion to strike out the judgment as to her, alleging her signature to the note to be a forgery. After taking testimony, and argument upon the motion, the lower court ordered the judgment stricken out and the case placed on the trial docket, reserving the lien of the judgment. The case was first removed to Cecil county, then to Queen Anne's county, and finally coming to trial at the November term of the circuit court for that county. By the action of the court in striking out the judgment by confession against the appellee and placing the case on the trial docket, it left the declaration standing, and the next pleadings in the course of arriving at an issue between the parties were pleas on behalf of the appellee. On May 16, 1924, the appellee filed her pleas, which were the general issue pleas; being first, that she never promised as alleged, and, second, that she never was indebted as alleged. On the 15th day of May, 1925, the plaintiff joined issue as to the defendant's first and second pleas, being the general issue pleas. Subsequently, on the 3d day of November, 1925, by leave of the court, the following supplemental pleas were filed by the defendant:

"First, that she never was indebted as alleged.

Second, that she never promised as alleged.

Third, that she never signed the alleged promissory note mentioned and described in the declaration, and that her alleged signature thereon is a forgery." On November 5, 1925, the plaintiff filed two motions: First, that the leave granted by the court to the defendant to file supplemental pleas be rescinded; and, second, that the third supplemental plea of the defendant be not received. Each of these motions was overruled by the court, to which rulings the plaintiff duly excepted, and these constitute the only exceptions contained in the record. Subsequent to the rulings of the court on these motions and the exceptions thereto reserved by the plaintiff, the plaintiff joined issue as to the defendant's first and second pleas, which were the general issue pleas, and replied to the defendant's third plea of forgery by denying that the note is a forgery and by alleging that the signature thereto is the signature of the defendant Agnes H. Harper. The defendant then joined issue on the third plea. The trial was proceeded with, and resulted in a verdict and judgment for the defendant, from which judgment this appeal is taken.

The question presented by this appeal is the correctness of the lower court's ruling in allowing the defendant to file a supplemental plea in which forgery is alleged and the signature of the appellee denied as being her genuine signature. The record discloses that this action of the court was subsequent to the filing of the general issue pleas by the defendant and a joinder of issue by the plaintiff on the general issue pleas. Article 75, § 28, subsec. 108, of the Code of 1924, provides:

"Whenever the partnership of any parties, or the incorporation of any alleged corporation, or the execution of any written instrument filed in the case is alleged in the pleadings in any action or matter at law, the same shall be taken as admitted for the purpose of said action or matter, unless the same shall be denied by the next succeeding pleading of the opposite party or parties."

This section has been construed by our predecessors in a number of cases. In the case of Banks v. McCosker, 82 Md. 518, 34 A. 539, 51 Am. St. Rep. 478, Judge Roberts, after quoting subsection 108, said:

"When the note sued on was filed in this cause it had the signature of the payee indorsed thereon, and was the means by which the appellees obtained title to the note, and became thereby enabled to maintain this action, the payee's signature was then just as much a part of the instrument sued on as were the signatures of the makers thereof. If, therefore, the next succeeding pleading did not in terms deny the signatures of the makers and of the payee, the law says, 'The same shall be taken as admitted for the purpose of said action or matter. ' We think it very clear that the legal effect and meaning of the statute is that the next succeeding pleading must in terms deny the signatures of the maker, and of the payee as well, and we do not think the general issue plea is such a denial as the law contemplates. Before the passage of the Act of 1888, c. 248, under issue joined on the general issue plea, the plaintiff had the burden cast upon him to establish the due execution of the note sued upon. Such being the case, what possible purpose could the Legislature have had in the passage of the act in question, if not to relieve the plaintiff from the burden of proving the partnership of parties, the incorporation of an alleged corporation, or the execution of any written instrument filed in the case or alleged in the pleadings. The defendant can always, by the timely interposition of an appropriate plea denying such partnership, corporation, or execution of a written instrument, place the burden of such proof upon his adversary."

In Tippett v. Myers, 127 Md. 527, 96 A. 678, the late Chief Judge Boyd said:

"The words, 'the same shall be taken as admitted for the purpose of said action or matter,' refer to the allegations of 'partnership of any parties,' 'the incorporation of any alleged corporation,' and 'the execution of any written instrument' alleged in the pleadings. The failure to deny any of these in the next succeeding pleading operates as an admission against the opposite party"--quoting Banks v. McCosker, supra.

To the same effect, see Citizens' Ins. Co. v. Conowingo Co., 113 Md. 430, at page 438, 77 A. 378; Frederick Institute v. Michael, 81 Md. 487, at page 505, 32 A. 189, 340, 33 L. R. A. 628; McCarty v. Harris, 93 Md. 741, 49 A. 414; Reilly v. Union Protestant Infirmary, 87 Md. 664, at page 670, 40 A. 894; Abbott v. Bowers, 98 Md. 525, at page 527, 57 A. 538; Fifer v. Clearfield Coal Co., 103 Md. 1, at page 3, 62 A. 1122; Norfolk & Western R. R. Co. v. Hoover, 79 Md. 253, at page 267, 29 A. 994, 25 L. R. A. 710, 47 Am. St. Rep. 392. In addition to these authorities, this court, in construing a similar provision in what is known as the Rule Day Act or the Speedy Judgment Act applicable to Baltimore City, has uniformily given it the same interpretation, as illustrated by the case of Thorne v. Fox, 67 Md. 67, at page 73, 8 A. 667.

In this case it is clear that the execution of the note, which is the cause of action filed in the case, is alleged in the pleadings; that the next succeeding pleadings were the pleas filed by the defendant, and, if the appellee desired to put in issue the genuineness of her signature to the note, it was incumbent upon her to deny her signature in the pleas originally filed to the declaration. Not having done so, the statute in unequivocal language and the numerous decisions of this court are clearly to the effect that, by filing the general issue pleas, she thereby admitted the genuineness of her signature, and is thereafter precluded from denying it. It is to be noted that, after the general issue pleas were filed by the appellee, the plaintiff joined issue as to those pleas. The case was then at issue, and any time thereafter was too late for the defendant to file any additional pleas which would put in issue the genuineness of her signature; and this, too, whether the filing of additional pleas was done with or without leave of the trial court. That court had no power to grant leave to the defendant to file a plea which would have an effect contrary to the plain meaning and intent of the statute. It is not a question of proper or improper exercise of discretion vested in the trial court, but a case where all power to exercise discretion is denied by the statute.

It is contended by the appellee that the provisions of section 39 of article 75, relating to amendments, are sufficient to sustain the action of the lower court. We are unable to assent to such a construction of that section, for the reason that any such interpretation would destroy the force and effect of subsection 108, § 28, art. 75, and would have the practical effect of repealing or nullifying that provision of the statute. The question of whether an alleged partnership is a partnership, an alleged corporation is a corporation, an alleged execution of a written instrument by a certain person is the genuine signature of such...