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

• Decision Date: 21 June 1928
• Docket Number: No. 35.,35.
• Citation: 142 A. 590
• Parties: HARPER (now george) v. FARMERS' & MERCHANTS' NAT. BANK OF CAMBRIDGE.
• Court: Maryland Court of Appeals

142 A. 590

HARPER (now george)

v. FARMERS' & MERCHANTS' NAT. BANK OF CAMBRIDGE.

No. 35.

Court of Appeals of Maryland.

June 21, 1928.

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

Action by the Farmers' & Merchants' National Bank of Cambridge against Agnes H. Harper, now Agnes H. George. Judgment for plaintiff, and defendant appeals. Affirmed.

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

T. Alan Goldsborough, of Denton (J. Owens Knotts, of Denton, and Edwin H. Brown, Jr., and Madison Brown, both of Centerville, on the brief), for appellant.

A. Stengle Marine, of Cambridge, J. H. C. Legg, of Centerville, and Fred. R. Owens, W. Brewster Deen, and William J. Richards, all of Denton, for appellee.

DIGGES, J. In 1920 a judgment was entered against the appellant and Nathaniel B. Harper, her husband, on a confessed judgment note, which was later stricken out and the case put on the trial docket. This case was subsequently tried and resulted in a verdict and judgment for the present appellant, Agnes H. Harper. An appeal was taken to this court, which was heard and resulted in a reversal of the judgment (151 Md. 358, 153 Md. 128, 137 A. 702); at the conclusion of the opinion the court saying:

"Judgment reversed, with costs to the appellant."

Later, upon petition, a reargument was allowed; and, at the close of the opinion on the reargument, we said:

"Former judgment of this court affirmed on reargument, with costs to appellant."

The mandate is set forth in the present record and contains the following:

"1927, February 9th. Motion for reargument granted, per order of court filed. 1927, May 6th. Former judgment of this court affirmed on reargument, with costs to appellant. Opinion filed."

Upon the receipt of this mandate by the circuit court for Queen Anne county, the case was placed upon the trial docket of that court. Whereupon counsel for both parties entered their appearance. The mandate was received on June 8, 1927, and the docket entries contained in the present record show that on July 18, 1927, the case was continued; that on October 7, 1927, a motion was made by the defendant's attorney for commission to take testimony in the city of Philadelphia that on November 7, 1927, the case was set for trial for December 5, 1927; that on the latter date the attorney for defendant made known to the court that Agnes H. George, formerly Agnes H. Harper, was sick and unable to attend court. Upon that day an additional plea was offered by the defendant, to which plea a motion ne recipiatur was interposed by the plaintiff and granted by the court; the case was then continued until the fourth Monday in January, 1928. The docket entries further show:

"Motion and leave to amend proceedings by changing name of defendant from Agnes H. Harper to Agues H. George. January 23, 1928: Motion by defendant's attorney to file additional plea; motion granted; motion by plaintiff's attorney that motion granted to file additional plea be rescinded. Motion by plaintiff's attorney that plea filed under leave to file additional plea be not received."

This latter motion being granted, to this action of the court and its action on the plea of Hecember 5th defendant excepted. The trial court then ruled:

"That the official report of the first decision of the Court of Appeals and a mandate showing that on reargument the former judgment of the Court of Appeals was affirmed. This court held that the case is before us for trial. To which ruling of the court the defendant excepts. Trial before the court."

The verdict of the court was for the plaintiff in the sum of $8,360.42; and from the judgment on that verdict the appeal in the case now before us is taken.

The appellant's brief and oral argument in this court are confined to the alleged error of the trial court in granting the motions ne recipiatur on behalf of the plaintiff to the pleas filed by the appellant. Before dealing with this phase of the case, however, we will advert to the situation existing at the time the case was heard below, and to the ruling of the trial court wherein it was held that the case was properly before it for trial. In the first trial of the case, and which came before us on appeal, the judgment below was in favor of the defendant Agnes H. Harper. In that trial the defendant was allowed to file a plea of forgery subsequent to the filing of the general issue pleas by her, and joinder of issue on these general issue pleas. This court held that that ruling by the trial court was erroneous, for reasons set forth in the opinion in the case of Farmers' & Merchants' Bank v. Harper, 151 Md. 358, 137 A. 702; the judgment following the opinion being: "Judgment reversed, with costs to the appellant." On the reargument, as stated, the former judgment of the court was affirmed in these words: "Former judgment of this court affirmed on reargument, with costs to appellant." Neither in the first judgment nor the one after the reargument was there a new trial awarded, in terms. The effect of the opinions of this court was to hold that the plea of forgery could not be filed or set up as a defense to the suit on the note after the general issue plea had been filed; in other words, that the case should be retried with the defense of forgery eliminated; and we find no error in the lower court, upon receipt of the mandate, reinstating the case on the trial docket and proceeding with the trial thereof, in accordance with the views expressed in the opinions of this court. The omission of the words "new trial awarded," or language indicating a procedendo, was a clerical omission or oversight on the part of the court. This is clearly indicated by the opinions in the previous cases, because those opinions show that the purpose and intention of this court was that a new trial should be had. in which the defense of forgery would be excluded. This purpose would be entirely frustrated if the judgment and mandate of this court could not be corrected to conform with that intent. Upon receipt of the mandate of this court, it may be that the better practice would have been for the appellee here to have filed a petition in this court asking that the judgment and mandate be amended to conform to what was the clearly expressed intent of the court in its opinion. In such a case there can be little doubt that this court has the inherent power to correct such errors. In 34 C. J. 235, it is said:

"If anything has been omitted from the judgment which is necessarily or properly a part of it, and which was intended and understood to be a part of it, but failed to be incorporated in it through the negligence or inadvertence of the court or counsel, or the clerk, the omission may be supplied by an amendment even after the term." 23 Cyc. 864-869; 15 R. C. L. 682, § 133.

The general principle above stated is supported by the great weight of authority throughout this country, reference being made to 34 C. J. 235, note 1. At page 229 of the same volume it is stated:

"The court, at any time either before or after the expiration of the term at which a judgment was rendered, or of the statutory period within which judgments may be amended, may correct or amend clerical errors and misprisions of its officers, so as to make the record entry speak the truth and show the judgment which was actually rendered by the court. The term 'clerical error' as here used must not be taken in too narrow a sense. It includes not only errors made by the clerk in entering the judgment, but also those mistakes apparent on the record, whether made by the court or counsel during the progress of the case, which cannot reasonably be attributed to the exercise of judicial consideration or discretion."

In Pickett's Heirs v. Legerwood, 7 Pet. 147, 8 L. Ed. 639, the court said that the same end sought by the writ of coram vobis is now, in practice, generally obtained by motion, sustained, if the case require it, by affidavit and it was added that the latter mode had so far superseded the former in the British practice that Blackstone did not even notice the writ as a remedy. In the case of State v. F. B. Williams Cypress Co., 132 La. 949, 61 So. 988, Ann. Cas. 1914D, 1290, a Louisiana case, the court said:

"Beyond, or, perhaps, among, the errors, the power to correct which is thus attributed to the writ of coram vobis, it is universally conceded that every court has the inherent power, without reference to statutory authority, to correct clerical errors in order to show what was actually done and thereby make its record conform to the truth, and the better opinion seems to be that a clerical error may be committed by the court, as well as by the clerk, and that a court may amend its record, not only to show what was actually done, but to incorporate in its judgment that which is necessarily or properly, and which was intended...