Hall v. Schuchardt

• Citation: 34 Md. 15
• Parties: W. TAYLOR HALL and THOMAS D. LONEY v. FREDERICK SCHUCHARDT, and others.
• Decision Date: 10 February 1871
• Court: Court of Appeals of Maryland

34 Md. 15

W. TAYLOR HALL and THOMAS D. LONEY v. FREDERICK SCHUCHARDT, and others.

Court of Appeals of Maryland

February 10, 1871

APPEAL from the Superior Court of Baltimore City.

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

Alex. H. Hobbs, for the appellants.

Where a case is submitted to the Court, without the aid of a jury its action, in the double capacity of Court and jury, is as final and conclusive, in every respect, as if a jury were duly sworn and empanneled; the Court, in such case, passes upon the law and fact simultaneously. Saulet vs Shepherd, 4 Wall. 502; Dearing's Adm'x vs. Rucker, 18 Grattan, 426.

As the Court, on all the evidence before it, decided that the appellees, the plaintiffs below, "had no standing in Court," and were not entitled to recover, the whole case was passed upon and disposed of; and being so passed upon and disposed of, it was too late to submit voluntarily, to a nonsuit. The technical right of nonsuit cannot be exercised after the merits of the case have been determined. 3 Abbott's National Digest, 340; Brightly's Federal Digest title " Nonsuit," 675; Stephens on Plead., 143; Long vs. Thwing, 9 Ind., 179; Doughty vs. Elliott, 8 Blackf., 406; Outhwaite vs. Hudson, 11 Eng. L. & E., 564; Robinson vs. Lawrence, 7 Eng. L. & E., 596; 7 Bacon's Abr., 219, title D; 2 Smith's Lead. Cases, mar. 667 and 806, (6 th Am. Ed.;) Lawrin vs. Hanks, 3 McCord, 559; 2 Burrill's Law Dictionary, title " Nonsuit," 755; Bowie, et al. vs. The Agricultural College, 27 Md., 276.

Stewart Brown and George Wm. Brown, for the appellees.

The appellees had the right to discontinue their case, and the judgment of non pros. was properly entered.

A plaintiff must be voluntarily present in Court before a verdict can be rendered against him, and it is at his option to allow the verdict to be rendered, or to discontinue his case.

Hence the practice of calling the plaintiff, who, after an adverse decision on the law or evidence, for the very purpose of preserving his remedy, and because of the certainty of an unfavorable result, by simply not answering, avails himself of his right. Evans' Practice, 314, 315, 400, 401, 402; 2 Kinne's Law Comp., 281; 2 Tidd's Practice, 867, 868, ( mar.;) Broom's Common Law, 183, (89 Law Library, 224, marg.;) 3 Bouv. Inst., 530, 531; 1 Arch. Nis. Prius, 50, ( marg.;) Stephens on Pleading, 346, a, and 143, b, (marg.;) 3 Stephen's Com., 619.

This is the common law right of the plaintiff; it must be his voluntary act; it will not be done at the instance of the defendant, nor without the plaintiff's consent, any more than a verdict can be rendered against him unless he remains to hear it. This is the English doctrine and is expressly sanctioned by the Maryland cases. Outhwaite vs. Hudson, 7 Exch., 380; Robinson vs. Lawrence, 7 Exch., 123; Stancliffe vs. Clarke, 7 Exch., 439-446; Corsar vs. Reed, (17 Q. B.,) 79 Eng. Com. Law, 540; Elmore vs. Grymes, 1 Peters, 469; Silsby, et al. vs. Foote, 14 Howard, 222; Borden Mining Co. vs. Barry, 17 Md., 429; Grahame and Parran vs. Harris, Parran & Co., 5 G. & J., 489; Kettlewell vs. Peters, 23 Md., 317; Levy and Barry, Adm'rs, vs. Levy, et al., 28 Md., 25-32.

This being the settled law in jury cases, the Superior Court, in cases submitted to it without a jury, has deliberately and with great practical wisdom adopted a course of practice conforming as near as may be to the usual and regular course of a jury trial, carefully keeping questions of law and evidence distinct from questions of fact, hearing them in the same order as in a jury trial, and deciding separately. Thus, 1st. Ruling out or admitting evidence. 2d. Deciding any questions of law raised. 3d. Entering a verdict on the facts. And 4th. Entering the proper judgment on verdict.

And this ought to end this controversy, as it shows that the entry of non pros. and discontinuance was strictly in accordance with the practice of the Court.

It is the inherent right of any Court of original jurisdiction, where, in its judgment justice requires it, in nonsuiting a plaintiff, to do so without prejudice; and the Superior Court in the sound exercise of its discretion having so entered the judgment, it is not the subject matter for an appeal on the part of the defendants.

MILLER J., delivered the opinion of the Court.

This cause was, under the provision of the Constitution, submitted to the Court for determination without the aid of a jury. The sole question for review is presented by the appellants' exception to the action of the Court in entering and recording a judgment of nonsuit in the case.

The action was against the appellants as drawers of a foreign bill of exchange. The material facts set out in the exception are these: the plaintiffs, after admission by defendants of the signatures of the drawers and endorsers of the bill offered evidence of its protest for non-acceptance and notice thereof to the defendants. Objections were made to the admissibility of this testimony, which were argued, the defendants' counsel opening and closing thereon. After the argument one of the counsel for the plaintiffs said the case had taken a rather unusual course, as the defendants' counsel had closed the argument, but that he submitted the case to the Court without further argument. The Judge then delivered an oral opinion sustaining the objection to the protest, and ruled that either by itself or in connection with the other testimony it was inadmissible, and that the plaintiffs were not entitled to recover, but made no entry in the case. At this point the plaintiffs' counsel took an exception to the ruling, and asked the Court to suspend further proceedings until they could consult with their clients, who resided in New York, whether they should submit to a nonsuit, with the expectation of supplying the requisite testimony, or suffer a judgment to be entered and take an appeal. To this the defendants' counsel objected, and said it was too late to move for a non pros. in a case submitted to the Court without a jury, after the Court had decided it. The Judge, however, said the plaintiffs had yet a right to non pros. the...