Frisby v. Parkhurst

Decision Date10 June 1868
Citation29 Md. 58
PartiesJOHN J. FRISBY, and others, v. JARED PARKHURST, and others. JARED PARKHURST, and others, v. JOHN J. FRISBY, and others.
CourtMaryland Court of Appeals

The cause was argued before BARTOL, C.J., STEWART, BRENT, GRASON MILLER, ALVEY and ROBINSON, J.

Arthur W. Machen and S. Teackle Wallis, for Whitridge and Alexander, Trustees:

The decision upon the former appeal, does not preclude the creditors of John J. Frisby's assignee from the defence set up in the supplemental answer. The question of an agreement, or valid family settlement, was not in issue, and therefore any opinion then expressed upon it, was extra-judicial. There can be no adjudication of a question which is not put in issue by the parties to the controversy. The decision must be germain to the issue. What transcends the issue before the Court, is not the legitimate opinion of the Court, but a mere judicial dictum, and has no further force. Graham vs. Maxwell, 2 Dow.'s Parl. Cas., 314; Henderson vs. Malcolm, 2 Dow.'s Parl. Cas., 285; Bainbrigge vs Baddeley, 2 Ph. Ch., 705; Ellicott vs Nichols, 7 Gill, 107; Guest vs. Warren, 9 Exch., 379; Thistle vs. Frostburg Coal Co., 10 Md. Rep., 145; Sellman vs. Bowen, 8 G. & J., 55; Simpers vs. Simpers, 15 Md. Rep., 160; Mason vs. Alston, 5 Seld., 28; King vs. Chase, 15 N. H., 9; Foster vs. Jackson, Hobart, 53, 54; Stevenson vs. Reigart, 1 Gill, 25, and Stevenson, et al. vs. Schriver and Wife, 9 G. & J., 336, 337.

Not only is the question of the agreement now put in issue by the amendment of the pleadings, but a different state of facts is before the Court. A preliminary hearing upon an interlocutory order, does not stand like a decision in a former distinct litigation. On the contrary, it is in accordance with the theory of equity practice, that the case may stand differently upon the evidence at final hearing. And the Court may, without inconsistency, come to one conclusion for the purposes of the temporary injunction, and arrive at another when all the proofs are in, and the questions in the case fully presented.

The evidence discloses an agreement or family arrangement which, upon well established principles of equity, was binding on Mrs. Frisby. It is definite and precise, for the will expresses what was to be accomplished. It has mutuality, is amply supported by consideration, and the performance of it, on Mrs. Edward's part, relieves the case from any difficulties arising out of the Statute of Frauds. Gaither vs. Gaither, 3 Md. Ch. Dec., 160; Small vs. Owings, 1 Md. Ch. Dec., 369; Johns vs. Johns, 20 Md. Rep., 58; Rhodes vs. Rhodes, 3 Sand. Chan., 279; Brinker vs. Brinker, 7 Penn., 53; 2 Story's Eq., sec. 715.

Family arrangements for the settlement of the property of the family, have peculiar claims to the favorable consideration of a Court of Equity. To receive a case into this class, the Court does not require that any doubtful or disputed right should have been the subject of adjustment, nor will it inquire into the quantum of consideration. Williams vs. Williams, Law Reports, 2 Chan. Ap. 294, by the Lord Chancellor and the Lord Justice TURNER, (1867,) affirming a decision of Kindesly, V. C., 2 Dou. & Sm., 378; Stockley vs. Stockley, 1 Vesey & Beames, 30.

Under the circumstances of this case, not to treat Mrs. Frisby as bound by the provisions of her mother's will, would be to make her the instrument of a fraud. On the other hand, to sustain the will of Mrs. Edwards, is to respect the principle on which rests the great doctrine of equitable estoppel. McClellan vs. Kennedy, 8 Md. Rep., 251; Alexander vs. Walter, 9 Gill, 254; Freeman vs. Cook, 2 Exch., 662, 663.

Upon the Cross-Appeal.--The action of the Circuit Court in allowing an amendment of the answer by receiving the supplemental answer, is not subject to review on appeal. Warren vs. Twilley, 10 Md. Rep., 46; Calvert vs. Carter, 18 Md. Rep., 107; Code of Public General Laws, Art. 16, sec. 16.

No rule of the Circuit Court for Baltimore county required notice to be given of the application for leave to amend. The practice is regulated in each case by the sound discretion of the judge. In this instance, the cause was still at the same stage as when the original answer was filed. No replication had been put in, nor other proceeding taken by the complainants in consequence of the answer, which also remained open to exception, as well as to amendment. Bowie vs. Stonestreet, 6 Md. Rep., 433; Murdock's Case, 2 Bland, 463; McKim vs. Thompson, 1 Bland, 162.

There is reason to disturb the ruling of the Circuit Court upon the complainants' exceptions to the evidence.

The mode of examination adopted in re-examining Mr. Ricaud, before Commissioner Tormey, was perfectly legitimate. By the agreement of both parties, his former deposition, taken in the Superior Court, was treated as evidence introduced under the commission, and the solicitors of the defendants thereupon proceeded to call the attention of the witness to certain parts of his testimony, which had given rise to a difference of opinion as to his meaning, and requested him to say what he did mean. The interrogatories are not liable to criticism if they are construed in the light of the surrounding circumstances. A witness has the clear right to interpret his own testimony. The People vs. Mather, 4 Wend., 247; 2 Phil. Ev., 890, 891; 1 Greenleaf on Ev., sec. 434; Lee and Brewster, Garn. of Wolf, vs. Tinges, 7 Md. Rep., 234.

R. B. Taney Campbell and William Schley for Parkhurst and others:

On the appeal of Parkhurst and others, it was insisted that although the right to amend the answer, upon application, before final decree, is given by the 16th section of Article 16 of the Code, yet it is restricted and qualified by the words, "so as to bring the merits of the case in controversy fairly to trial." Such amendment can only be made by leave of the Court; and hence the established practice of the Court must be regarded. The Court will not allow an amendment, unless informed of the nature of the proposed amendment; and unless satisfied that it is necessary to bring the merits of the case in controversy fairly to trial. A defendant will not be permitted to make a new case, and raise a new controversy; and he ought to satisfy the Court that he has been guilty of no default, no laches, and seeks no unjust advantage. Calvert vs. Carter, 18 Md. Rep., 73; The Western Reserve Bank vs. Stryker et. al., 1 Clarke's Rep., 382; Strange vs. Collins, 2 Vesey & Beames, 163.

The answer in this case is not properly an amended answer. The original answer is wholly unchanged. No allegation therein contained is retracted. In the application for leave to file a new answer, it is termed a supplemental answer; it is so denominated in the order granting leave to file it; and is so styled in its caption. And in this new answer, the defendants expressly rely on all the averments contained in their former answer: thus presenting the inconsistent defences of a title by election, dependent on volition; and a title by contract, dependent on obligation.

The answer ought to have been taken off the file. It was irregularly introduced into the case, and filed in disregard of the established practice in chancery.

On the appeal by Messrs. Alexander & Whitridge, it was insisted, on behalf of the appellees, that the decree of this Court, on the former appeal, was a final adjudication, that Mrs. Frisby had not made an election, binding on her creditors, to take, under the will of Mrs. Edwards, the benefits to her given under said will; and to renounce the benefits to her given under the will of James Edwards, so far as it was inconsistent with the will of Mrs. Edwards. There is no pretence of any new evidence in this respect. The case, in this aspect, is precisely now what it was when formerly before the Court.

The decree of this Court, on the former appeal, was a solemn decision, that, upon the evidence then in the cause, there was no sufficient evidence of a binding agreement on the part of Mrs. Frisby, to give effect to, or acquiescence in the devise by Mrs. Edwards to John J. Frisby. If the record now before the Court presents the same state of case on which the Court made its decision on the former appeal, there is no open question. The parties are the same, and if the evidence be the same, it is res adjudicata. It is the law of the case, and is binding on the Court itself. Mitchell vs. Mitchell, 6 Md. Rep., 224; Johns vs. Johns, 20 Md. Rep., 61, 62; Alexander vs. Worthington, et al., 5 Md. Rep., 476, 488; Magruder and Tuck vs. Carroll, et al., 4 Md. Rep., 345; Carroll vs. Lessee of Carroll, et al., 16 Howard, 286.

GRASON J., delivered the opinion of the Court.

This case has arisen out of the conflicting claims of the creditors of Elizabeth Frisby and John J. Frisby respectively, to the proceeds of the sales of the property mentioned in the proceedings in the cause, and this is the second time this case has been before this Court upon appeal. The first appeal was from an order of the Court below, continuing the injunction till the final hearing. The order was affirmed by this Court, and the cause remanded for further proceedings. A supplemental or amended answer was filed, further evidence was taken and, upon final hearing, a decree was passed decreeing, among other things, that the property, in the proceedings mentioned, was the property of Elizabeth Frisby, and, as such, was held to the payment of the debts due to the complainant and...

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4 cases
  • Morris v. Fletcher
    • United States
    • Arkansas Supreme Court
    • October 21, 1899
    ...423; 48 N.W. 450; 30 Mo. 389; 47 Mo. 37; 12 Pa.St. 27; 5 Bush, 625; 6 Bush, 245; 11 Bush, 142; 3 Bush. 35; 31 Mich. 247; 4 Stockt. Ch. 371; 29 Md. 58; 20 Ind. 223; 9 N.Y.S. 114; 3 Cliff, 1 Roper, Leg. 766; 17 A. 995; S. C. 127 Pa.St. 341; 20 A. 579; S. C. 137 Pa.St. 35; 17 S.W. 742; 15 N.E.......
  • Scott v. Marden
    • United States
    • Maryland Court of Appeals
    • March 24, 1927
    ... ... established by the adduction of proper and adequate ... evidence." ...          See, ... also, Whitridge v. Parkhurst, 20 Md. 62; Frisby ... v. Parkhurst, 29 Md. 58, 96 Am. Dec. 503; Mundorff ... v. Kilbourn, 4 Md. 459 ...          "A ... paper in ... ...
  • Wilmer v. Placide
    • United States
    • Maryland Court of Appeals
    • March 2, 1916
    ... ... the rule that the allowance or refusal of such an amendment ... is within the discretion of the trial court. Frisby v ... Parkhurst, 29 Md. 58, 96 Am. Dec. 503; Calvert v ... Carter, 18 Md. 74; Miller's Equity, 239 ...          While ... it will be ... ...
  • White v. Winchester
    • United States
    • Maryland Court of Appeals
    • January 12, 1915
    ... ... performance is by the appointment of a trustee to execute a ... deed of conveyance of the estate." ...          See, ... also, Frisby" v. Parkhurst, 29 Md. 58, 96 Am. Dec ... 503; Semmes v. Worthington, 38 Md. 298; Hamilton ... v. Thirston, 93 Md. 213, 48 A. 709 ...       \xC2" ... ...

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