Harris v. Hipsley
| Decision Date | 15 January 1914 |
| Parties | HARRIS v. HIPSLEY et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.
"To be officially reported."
Caveat by Lucretia Hipsley and others to a document introduced by William J. Harris as the will of Mary A. Harris. From a judgment for the caveators, the proponent appeals. Reversed and remanded.
D. G McIntosh, of Towson, and Frank Gosnell, of Baltimore, for appellant.
Elmer J. Cook and T. Scott Offutt, both of Towson, for appellees.
This is an appeal from the rulings of the circuit court for Baltimore county at the trial of issues sent to that court by the orphans' court of that county. A caveat to the will of Mary A. Harris was filed, and issues were framed as follows (1) Whether the paper writing dated the 24th day of January 1905, purporting to be her last will and testament, was signed by said Mary A. Harris, or by some other person in her presence and by her express direction, and attested and subscribed in her presence by two or more credible witnesses; (2) as to her testamentary capacity; (3) whether the contents of the paper writing, dated, etc., were read to or by her, or known to her at or before the time of the alleged execution thereof, and (4) whether it was procured by undue influence exercised and practiced upon her.
The trial began on May 26, 1913, and ended on June 6th. At the conclusion of the plaintiffs' testimony (on June 2d) a verdict was rendered in favor of the caveatee on the fourth issue (undue influence) by direction of the court. There are twenty bills of exception presenting rulings on the admissibility of evidence. The twenty-first contains rulings on motions to strike out testimony, and on the prayers. The plaintiffs (caveators) offered two prayers, both of which were granted, and the defendant (caveatee) offered ten, all of which were granted except the second and fourth. An exception was taken to remarks of counsel for plaintiffs during his argument before the jury. The judge of the trial court declined to sign a bill of exceptions as presented, but did sign a certificate stating his recollection of what occurred, supplemented by stenographic notes of one of the counsel.
The jury on June 6th rendered a verdict for the plaintiffs on the second and third issues; their answer to each being, "No." At the time no verdict was rendered on the first issue; the one on the fourth having already been rendered as stated above. On the 9th of June (only Saturday and Sunday intervening) the jurors who had separated were called together by the court, not having been sworn in any case in the interim, and their verdict was taken upon the first issue, which was for the defendant, and their answer thereto was, "Yes." That action of the court is presented by the twenty-second bill of exceptions. There was also a motion filed on August 2d to strike out the verdict, and not certify it, which was overruled, and we understand was based on the ground referred to in the last exception, although we find no reason assigned in the record.
Inasmuch as it involves the validity of the verdict, we will first consider the last (twenty-second) exception. The bill of exceptions speaks of this issue as the second; but, inasmuch as the second was as to testamentary capacity, and the record shows that there was a verdict for the plaintiffs, and the answer "No" on that issue, it was clearly a clerical error in the exception. Nearly all of the testimony is in reference to the testamentary capacity of the testatrix, and that was the real controversy at the trial, and, while it is not conceded, we do not understand it to be denied by the attorneys for the appellant that the verdict taken on June 9th was on the first issue, as the docket entries show. It is undoubtedly true that the jury should have passed on all the issues not already disposed of, and it must be conceded that ordinarily the jury should not be permitted to amend their verdict after it has been recorded and the jury dismissed. But in this case the jury was instructed on June 5th, by the defendant's first prayer, that there was no evidence legally sufficient to show that the will was not signed by Mary A. Harris, and attested and subscribed by her in the presence of two or more credible witnesses, and therefore their verdict must be for the defendant on the first issue, and their answer thereto, "Yes." The verdict was not, however, entered on that issue when the prayer was granted, as there had been on June 2d on the fourth issue, and that fact was apparently overlooked by the court, the clerk, and the attorneys. It would seem remarkable if the rules of law, at this day when courts are endeavoring to get out of the meshes of useless technicalities, which have brought more or less discredit upon the administration of justice in the past, would require a reversal of a case which had occupied nearly two weeks in the trial, and is presented to us for review by a record of over 500 printed pages, for the reason now under consideration, especially when it is remembered that the verdict now complained of was in favor of the appellant, and was in accordance with the instruction of the court granted at his instance on June 5th. The jury did not amend their verdict by changing or affecting it as to either of the issues they actually passed on, but simply rendered a verdict on another and distinct issue which they could and should have rendered on June 5th. They could not have rendered any verdict on that issue other than what they did render "without violating their duty, and acting in contempt of the court." Diamond State Co. v. Blake, 105 Md. 570, 66 A. 631.
In the case just cited the court, at the conclusion of the plaintiff's testimony, had instructed the jury to render a verdict in favor of the Chestertown Electric Light & Power Company, one of two defendants who had been sued in that case. As there said: "The proper practice undoubtedly was to have taken the verdict when the prayer was granted; but it was overlooked." The jury rendered a verdict at the conclusion of the whole case "for the plaintiff for the sum of $1,950." The Diamond State Telephone Company filed a motion in arrest of judgment, whereupon the court instructed the clerk as follows: "You are hereby directed to amend the docket entries in the above-entitled case by inserting after the words 'Judgment nisi on verdict for plaintiff for $1,950, October 25, 1906,' the words 'as against the defendant the Diamond State Telephone Company, and judgment for the defendant the Chestertown Electric Light & Power Company for costs."' That action of the lower court was sustained by us, and we said: There the court named the defendant against which the judgment should be treated as rendered, and entered a judgment in favor of the other defendant, because the court had granted a prayer discharging the one defendant, and the jury was presumed to have known that they could not render a verdict against that defendant. We said, "The order of the court was in the nature of a nunc pro tunc order, although not strictly so," and it might be so treated here, for surely, if it is permissible in a case like that, where there were two defendants, for the court to amend the verdict without even reconvening the jury, by rendering such a judgment as would have been rendered if the verdict of the jury had conformed to the instruction of the court, it was proper to have the jury in this case render the verdict directed by the court on the issue which was not previously rendered simply because it was overlooked. There was no possible danger of injury to the parties by reason of the jury having separated, for the clear reason that the court had already determined for them, as a matter of law, what their verdict should be, and they could not render any other. If the practice was to enter judgments in such cases, the court might have done as was done in Diamond State Co. v. Blake; but, as under our practice no judgment is entered on the findings of a jury on issues from the orphans' court, the proper practice was to do what was done -- to recall the jury and direct them to render the verdict which the defendant's first prayer had instructed them to render. As the court passes on the legal sufficiency of evidence, when that question is raised, the jury has nothing to do but obey the instructions of the court, if the court determines, as it did as to this issue, that there was no legally sufficient evidence to be submitted to the jury. Under these circumstances, we can have no doubt that the action of the lower court was correct, and it becomes unnecessary for us to determine how far or when a verdict can be amended under different conditions. The general subject is considered in Edelen v. Thompson, 2 Har. & G. 31; Browne v. Browne, 22 Md. 115; Gaither v. Wilmer, 71 Md. 361, 18 A. 590, 5 L. R. A. 756, 17 Am. St. Rep. 542; Farmers' Packing Co. v. Brown, 87 Md. 1, 39 A. 625; Hechter v. State, 94 Md. 429, 50 A. 1041, 56 L. R. A. 457; Bronstein v. American Ice Co., 119 Md. 132, 86 A. 131; Poe's Practice, §§ 192a and 332--but the case of Diamond State Co. v. Blake, supra, is more analogous to this one, as there as well as here the action of the court only carried into effect what it had previously determined. There was, then, no error in reference to the verdict on the first issue.
Having disposed of that question, we will now...
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