Parr v. State

• Court: Maryland Supreme Court
• Writing for the Court: ALVEY, C.J.
• Citation: Parr v. State, 71 Md. 220, 17 A. 1020 (Md. 1889)
• Decision Date: 12 June 1889
• Parties: PARR ET AL. v. STATE, TO USE OF COCKEY.

17 A. 1020

71 Md. 220

PARR ET AL. v. STATE, TO USE OF COCKEY.

Court of Appeals of Maryland

June 12, 1889

Appeal from superior court of Baltimore city; HARLAN, Judge.

Argued before ALVEY, C.J., and MILLER, ROBINSON, IRVING, STONE BRYAN, and MCSHERRY, JJ.

John H. Thomas, for appellant.

John P. Poe and Thomas S. Baer, for appellees.

ALVEY C.J.

This is an action on a guardian's bond, brought against the principal and sureties for the use of the ward, and the case is here on the appeal of the sureties alone, the principal not appearing to have made defense to the action. The principal questions in the case arise on the pleadings, and hence it is necessary to an intelligible understanding of the questions, and how they are presented, that we state the pleadings with some fullness. The declaration sets forth the condition of the bond, the settlement by the guardian in the orphans' court of an account showing a balance in his hands due the ward of $10,591.30, the fact of the arrival at age of the ward, and assigns as a breach of the condition of the bond the failure of the guardian to pay over to the ward the sum of $7,707.97 of said balance, alleged still to be due and owing. The defendants, the sureties in the bond, filed three pleas: (1) That the guardian did not settle in the orphans' court any such account as that alleged in the declaration; (2) that, after the ward became 21 years of age he executed and delivered to the guardian a full and complete release of all claims against him as guardian; and (3) that, after the ward became 21 years of age, in consideration of the transfer to him by his guardian of certain valuable property, he executed and delivered to his guardian a full release of all claims against him as guardian, and that, to the prejudice of the defendants as sureties, the ward took possession of and title to said property, while it was of large value, and did not repudiate said release, or seek to have it set aside, or notify the defendants of any objection thereto, or of any claim against them under said bond, until after said property had become utterly worthless. The plaintiff joined issue on the first plea, and, by way of replication to the second and third pleas, alleged that the ward was induced to execute the release mentioned in said pleas by the fraud and fraudulent representations of the guardian; that, as soon as the fraud was discovered by the ward, he filed a bill in equity in the circuit court of Baltimore city against said guardian to have the said fraudulent transfer annulled, and said release vacated and set aside; that the defendants, as sureties of the guardian, were notified of the filing of such bill in equity, and that they employed counsel to appear and defend the said case, and were represented by such counsel throughout the entire proceeding, and that they paid the fees of such counsel; that, through their counsel, they cross-examined the witnesses for the plaintiff, and produced and examined witnesses on their own behalf, and paid the costs of taking such testimony; that counsel so employed by them argued the case in the circuit court, and that, after the decree, which declared said release to be null and void, and adjudged and directed the guardian to pay to the said ward the sum of $7,707.97, with interest thereon from the 27th of November, 1880, the defendants, by their counsel, prosecuted an appeal from such decree to the court of appeals, and that they paid the costs of such appeal; that the counsel so employed argued the case in the court of appeals, and that said decree, so appealed from, was in all respects affirmed by the said court of appeals,--and so the plaintiff avers that the defendants, in consequence of such notice to them of said proceedings, and of their participation therein, became parties to said cause, and are conclusively bound by said decree to the same extent that the said guardian, Edward D. McConkey, is bound thereby; and the plaintiff pleads and relies on said final decree as a conclusive adjudication, estopping the defendants from setting up the matters and things set forth in their said second and third pleas. To this replication there were three rejoinders: (1) That the said ward was not induced to execute the release mentioned by false and fraudulent representations of the guardian; (2) that the ward did not, as soon as he discovered the alleged fraud by which the release was procured, file his bill in equity against the guardian to have the transfer therein referred to annulled, and the release vacated and set aside. Upon these two rejoinders issues were joined. By the third rejoinder to the replication the defendants aver that the counsel employed by them to defend said cause was employed to do so in the name and on behalf of the guardian, Edward D. McConkey, the only defendant in said cause; that said counsel was only permitted by said guardian to make, and did only make, defense therein in the name, under the control, and as the representative, of the said guardian; that the present defendants were not represented by such counsel throughout said proceedings; but that, as counsel of the guardian, and not of these defendants, said counsel produced witnesses on behalf of the guardian, cross-examined witnesses produced by the plaintiff, took an appeal, and argued the case in the court of appeals, and advanced the money due by the guardian to pay the costs of taking testimony and costs of the appeal. And they aver that they did not and could not control the defense in said proceedings, or in any of them; that, if they could have controlled the defense in said proceedings, they could and would have procured competent testimony material to the issues involved in said proceedings, and that the said decree would not have been rendered; and that, therefore, they did not become parties to said proceedings, and are not conclusively bound by said decree rendered therein. To this rejoinder the plaintiff entered a general demurrer, which was sustained by the court below, and judgment was entered on the demurrer for the plaintiff. Whether this demurrer was properly sustained is the first question presented on this appeal.

It may be stated as a well-settled general rule of pleading that whenever a material fact, well pleaded, is passed over by the adverse party without denial, whether it be by pleading in confession and avoidance, or by traversing some other matter or by demurring in law, it is thereby, for all purposes of pleading at least, conclusively admitted; or, as stated by the queen's bench, such "an admission made in the course of pleading, whether in express terms or by omitting to traverse what has been before alleged, must be taken as an admission for all purposes regarding the issue arising from that pleading, whether the facts relate to the parties or to third persons, provided the allegations so admitted be material." Bingham v. Stanley, 2 Q. B. 127; Robins v. Maidstone, 4 Q. B. 816. Therefore, if the plaintiff in his replication makes several averments, which the defendants do not traverse in their rejoinder, to which the plaintiff demurs, judgment shall be for the plaintiff; for what is materially alleged must be traversed, or it is always taken to be admitted. Com. Dig. tit. "Pleader," G. 2. Now, the plaintiff, in the replication to the second and third pleas of the defendants, expressly avers and sets forth the material facts of the filing of the bill in equity by the ward against the guardian; the obtaining the decree of the circuit court setting aside and vacating the release, and also decreeing the payment of a certain sum of money by the guardian to the ward; and that such decree was affirmed on appeal. It also further avers that the present defendants, as sureties of the guardian, were not only notified of the pending of the suit, but that they actually employed counsel to defend the same, and that they were in fact represented in those proceedings by such counsel, who was paid by the defendants. These facts, most material in their character, have not been traversed or denied by the defendants in their rejoinder. ...