Harryman v. Roberts

• Decision Date: 19 June 1879
• Parties: JOHN G. HARRYMAN and Edson M. Schryver, Trading as Harryman & Schryver v. ALBERT D. ROBERTS.
• Court: Maryland Court of Appeals

52 Md. 64

JOHN G. HARRYMAN and Edson M. Schryver, Trading as Harryman & Schryver v. ALBERT D. ROBERTS.

Court of Appeals of Maryland.

June 19, 1879

Appeal from the Court of Common Pleas of Baltimore City.

Henry Wagner and Edson M. Schryver as co-partners, carrying on business in Baltimore City, under the firm name of Wagner & Schryver, made advances on consignments of broom corn to Albert D. Roberts, of Ohio, the appellee. The advances exceeded the consignments some $2800. Wagner died and Schryver went into partnership with John G. Harryman, under the name of Harryman & Schryver. Schryver, as surviving partner of Wagner & Schryver, assigned, in writing, the claim against Roberts to Harryman & Schryver, who, on the 18th of March, 1878, instituted an attachment against Roberts, and caused the writ to be laid in the hands of various parties as garnishees. The case is further stated in the opinion of the court.

The court below sustained the defendant's demurrer, and the plaintiffs then joined issue short on his third plea. An agreement of counsel was filed waiving all errors in pleading.

Plaintiff's First Exception.--This was taken to the action of the court (Brown, J.,) in sustaining the defendant's demurrer.

Plaintiff's Second Exception.--This was taken to the admission in evidence of certain matters read from a printed book, in two volumes, purporting to be "The Revised Statutes of the State of Ohio," of a general nature in force August 1st 1860, etc., etc.

Plaintiff's Third Exception.--This was taken to the reading in evidence the transcript of the record of the case of Harryman v Roberts, in the Court of Common Pleas of Ross County Ohio.

Plaintiff's Fourth Exception.--The plaintiffs offered two prayers, as follows:

1. If the jury find from the evidence, that at the time suit was instituted in Ohio by the plaintiffs against the defendant the plaintiff, Schryver, had not assigned in writing the causes of action, mentioned in evidence, to himself and the plaintiff, Harryman, then the jury are not at liberty to find from the evidence that the causes of action mentioned in this suit, are the same as the causes of action on which the plaintiffs sued the defendant in Ohio.

2. The jury are instructed that the admission of one of the plaintiffs that the causes of action in this suit, and in that mentioned in the alleged judgment offered in evidence are the same, is not binding on the plaintiff, Harryman.

The defendant offered the following prayer:

If the jury find from the evidence in the case, that the defendant, Albert D. Roberts, was a resident of Ross County, in the State of Ohio, on the 22nd of January, 1878, at the time of the institution by the plaintiffs against him of the suit in Ross County, Ohio, of which suit a record has been offered in evidence in the case now on trial; and shall further find that the indebtedness, for the recovery of which the suit in Ohio was instituted, is virtually and substantially the same as the indebtedness for the recovery of which the case now on trial was instituted, then their verdict must be for the defendant, notwithstanding the fact that in the Ohio case the debt was sued for as due upon an account stated between Harryman & Schryver and Albert D. Roberts, and in the case now on trial, the debt is sued for as a debt having been due by Roberts to Wagner & Schryver, and by said Schryver, as the survivor of said firm of Wagner & Schryver, assigned to said Harryman & Schryver.

The court rejected the prayers of the plaintiffs and granted the prayer of the defendant. The plaintiffs excepted, and the verdict and judgment being against them, they appealed.

The cause was argued before BARTOL, C. J., MILLER, ALVEY and ROBINSON. JJ.

Sebastian Brown, for the appellants.

The alleged judgment in Ohio is no bar to this action, because the defendant fraudulently consented that it be allowed to stand against him for the sole purpose of pleading the same in bar of this suit, and of defrauding the plaintiffs out of their money.

Where the Statute of Limitations is pleaded, a replication alleging fraud is a sufficient answer to the plea. Balt. Build. Asso. v. Grant, 41 Md. 560.

The defendant, by his affidavit, as alleged in the second replication, swore he was not served with process, and as appears from the transcript of said judgment, he was not served with process. Such being the fact alleged by the replication, the court in considering the demurrer could not look to the statute laws of Ohio for evidence to support the demurrer. Ritchie's Case, 31 Md. 191.

If the defendant were not served with process, the judgment against him as far as this State is concerned, is simply void.

The court erred in permitting the defendant to read in evidence certain printed matter from two volumes, purporting to be the Revised Statutes of Ohio, of a general nature. The object of this evidence was to prove that according to the laws of Ohio, a writ of summons in a suit could be legally served by leaving the same in the usual place of residence of the defendant.

The Maryland Code, Art. 37, sec. 47, provides that "public or private statutes * * * of any State * * may be read in evidence from any printed volume purporting to contain the statutes of the said * * State."

These two volumes do not profess to contain all the statutes, or the particular statutes of any one session, but only statutes of a general nature. The books on their face have the appearance of being a private codification, and they contain no internal evidence of having been published by authority. Though they contain the words "published for the State of Ohio," by an Act passed March 16, 1860, the Act does not appear in the volumes.

The volumes contemplated by our Code, Art. 37, sec. 47, are such as contain the statutes of a particular session of the Legislature, or a codification of the laws which has been adopted by the Legislature.

The alleged judgment has no binding force in this court, because the defendant was not personally served with process. D'Arcey v. Ketchum, 11 How. 174; Webster v. Reid, 11 How. 459, 460; Nations v. Johnson, 24 How. 195; Weaver v. Boggs, 38 Md. 261; Mayhew v. Thatcher, 6 Wheat. 129; Lincoln v. Sower, 2 McLean, 473; Westerwelt v. Lewis, 2 McLean, 511.

It is claimed that a judgment where there has been no personal service is good, if the defendant be a resident of the State where judgment is rendered, and the law of that State makes other process sufficient.

The court said in Webster v. Reid, that a judgment recovered without personal service is a nullity whether the defendant be a resident or not.

This court held in Weaver v. Boggs, that whether a foreign judgment recovered without personal service is binding or not, must be determined by the circumstances of each case as it arises. If there ever was a case where the judgment should be held not binding, this is that one.

The transcript is not properly certified.

The prayers of the plaintiffs should have been granted and the prayer of the defendant rejected. The only evidence that the cause of action in both suits is the same, is in an admission of one of the plaintiffs, as testified to by Mr. Schmucker.

Parol testimony as laid down in Whitehurst v. Rogers, 38 Md. 517, 518, is often necessary to show that causes of action are the same. But this must be taken with certain limitations. If suit be brought to recover for goods bargained and sold, and after judgment a second suit be brought for goods bargained and sold, it is proper to show that the goods mentioned are the same in both cases. But if the second suit be brought for money lent, then, even if the previous case for goods bargained and sold went by default, it would be incompetent to show that the suit for goods sold and the suit for money lent were on the same cause of action.

The suit in Ohio was on an account stated, and the suit here is on money paid for, and for money lent to, the defendant by Wagner and Schryver, as well as on accounts stated. In this case we claim nothing on the count of accounts stated. How then can the cases be the same? A judgment by default was recovered when the defendant owed nothing. He knew he owed nothing and could have caused the judgment to be stricken out. He must take the consequences of that judgment as of any other judgment by default. The admission of Schryver might bind him if he were sole plaintiff, but it being an admission beyond the scope of his authority as a partner, it cannot bind the firm.

Samuel D. Schmucker, for the appellee.

The court below was right in sustaining the demurrer to the first, second, and fourth replications to the defendant's third plea, because the first replication tendered no issue of fact, but attempted to put in issue, to be tried by a jury, mere matters of law.

The second replication is bad, because it is vague, argumentative and uncertain, and also, because it relies upon the pendency of a proceeding, i. e., a motion to strike out the judgment instituted subsequent to final judgment.

The Ohio judgment would have been a good bar to the present suit, even if an appeal were now pending from that judgment. Bank v. Wheeler, 28 Conn. 433.

The second replication is also bad, because it attempts to put in issue the propriety of the action of the Ohio judge in overruling the motion to strike out the judgment rendered there--a matter which it was not competent for the court below to review.

The fourth replication is bad, because the defendant was under no obligation to keep the plaintiffs advised in the law of their case, either in Ohio or here.

The appellants, by entering into the agreement at the trial to waive all errors in pleading, acquiesced in the action of the court in sustaining the demu...