Schindel v. Suman

• Decision Date: 28 April 1859
• Citation: 13 Md. 310
• Parties: SAMUEL SCHINDEL v. ALBERT H. SUMAN.
• Court: Maryland Court of Appeals

13 Md. 310

SAMUEL SCHINDEL v. ALBERT H. SUMAN.

Court of Appeals of Maryland.

April 28, 1859

Where there is a demurrer and issues of fact, and the demurrer is ruled against the party pleading it, and the issues of fact are tried, and a verdict and final judgment rendered against the same party, he may appeal from the judgment on the demurrer.

The record of an action of assumpsit between the same parties where the jury assessed the plaintiff's damages at a sum less than $50, and the court for want of jurisdiction gave judgment for the defendant, is no evidence of the former recovery of the debt due from the defendant to the plaintiff, nor can it operate as a bar to another action for the same debt.

APPEAL from the Circuit Court for Washington county.

This was an action brought by the appellee against the appellant on the 6th of July 1857, for money payable by the defendant to the plaintiff, for work done and materials furnished money paid, and money due on an account stated.

The defendant pleaded 1st, not indebted as alleged; 2nd, payment and 3rd, " that at the Circuit court for Washington county, at its November term 1856, the plaintiff, upon trial had in an action of the said plaintiff against the said defendant, upon the same cause of action in said declaration in this cause mentioned, obtained a verdict against the defendant for $40 damages, whereupon the said court rendered judgment for the defendant for his costs only, and that said judgment is still a subsisting judgment for such costs."

The plaintiff joined issue upon the 1st and 2nd pleas, and demurred to the 3rd, upon the grounds; 1st, that the verdict obtained by the plaintiff on the former trial was for an amount under the jurisdiction of the court, and, therefore, a judgment on the verdict of the plaintiff could not be rendered for want of jurisdiction in the premises, and therefore, a judgment for the defendant for his costs only was entered, which does not preclude the plaintiff from a recovery in this action; 2nd, that there was no judgment rendered on the same cause of action declared on in this case by any court of competent jurisdiction, and that the Circuit court for Washington county, upon the verdict rendered for the plaintiff, as alleged in said third plea, had no jurisdiction to render any valid or legal judgment to preclude the plaintiff from recovery on the same cause of action in this suit; and 3rd, that it appears from the allegations of said plea, that there was no valid judgment rendered by the Circuit court for Washington county, on the same cause of action declared on in this case, whereby the plaintiff is estopped and precluded from recovery in this action.

The defendant joined in demurrer, by alleging that the third plea, as pleaded, is good in substance.

The court, (Perry J.,) sustained the demurrer, and adjudged the plea to be insufficient to bar and preclude the plaintiff from recovering, and from this judgment on demurrer the defendant prayed an appeal.

By an agreement the record was amended, so as to show that the issues of facts were tried, and a verdict and judgment rendered for the plaintiff for $165 and costs.

The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.

Harbine, Hamilton and Smith, for the appellant.

1st. The same cause of action having been once fully and fairly tried between the same parties in the same court, that should be final and conclusive: Interest reipublicæ ut sit finis litium; " and " Nemo debet bis vexari pro una et eadem causa. " Broom's Legal Maxims, 131, 135.

2nd. The case of Offutt vs. Offutt, 2 H. & G., 178, is not applicable, because there the former judgment was not pleaded in bar, but given in evidence under the general issue of non assumpsit, and the court in that case say, (page 181,) " it is made a question, whether the record of this proceeding thus conducted, and thus eventuating, is a bar to a recovery in the present action, or can be given in evidence as such." The record sought to be given in evidence was not the same in the subject matter as the case reported, for the tacked account had not been an object of controversy in the former suit. The judgment for the defendant in the former action, for costs, was not in effect a judgment of non pros. The Act of 1835, ch. 201, sec. 4, was passed since the decision of Offutt vs. Offutt, and it requires such a judgment, where the verdict of the jury is for a sum below the jurisdiction of the court, and takes this case out of the rule applicable to cases of ordinary non pros., and to the case of Offutt vs. Offutt.

3rd. It was competent for the jury to find the amount due the plaintiff, though, as that...