Schulze v. Fox

• Decision Date: 28 January 1880
• Citation: 53 Md. 37
• Parties: CHARLES SCHULZE v. GEORGE FOX.
• Court: Maryland Court of Appeals

53 Md. 37

CHARLES SCHULZE v. GEORGE FOX.

Court of Appeals of Maryland

January 28, 1880

Appeal from the Baltimore City Court.

The case is stated in the opinion of the court.

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

Alexander H. Hobbs, for the appellant.

As to the time of signing the bill of exceptions, the appellant cited 41 Md. 565; 44 Md. 311, 317. As to pleading limitations to an amended declaration, he cited Newcomer v Keedy, 9 Gill, 266; Griffin v. Moore, 43 Md 252; Wright v. Hollingsworth, 1 Pet. 168; Evans' Pr. 183.

Albert Ritchie, for the appellee.

The appellee moves to dismiss the appeal, because none lies from refusal to allow the defendant to amend his pleadings; and if it does, the appeal is prematurely taken. Welsh v. Davis, 7 Gill, 364.

The bill of exceptions was not filed in time. Townshend v. Chew, 31 Md. 247; Insurance Co. v. Hoeske, 32 Md. 317.

The defendant's exception has become immaterial by reason of his own subsequent testimony. Ins. Co. v. Stibbe, 46 Md. 302.

Plaintiff's amendment did not let in limitations. Code, Art. 75, sec. 23.

To allow the defendant's amendment or not, was within the discretion of the court; and no appeal lies from its refusal. Ellicott v. Eustace, 6 Md. 506; Deford v. Keyser, 30 Md. 179; Scarlett v. Academy of Music, 43 Md. 204; Wright v. Hollingsworth, 1 Pet. 167.

At most, limitations would not be received unless the amendment by plaintiff was material, and changed the substance of the issue. Such was not the case here. And whether the plaintiff's amendment is material, and changes the substance of the issue, or not, rests in the judgment and discretion of the lower court, and no appeal lies. Garrett v. Dickerson, 19 Md. 418; Express Co. v. Trego, 35 Md. 61; Claggett v. Easterday, 42 Md. 617; Miller v. Miller, 41 Md. 623; Code, Art. 75, secs. 24, 32.

Miller J., delivered the opinion of the court.

Most of the questions arising in this case may be disposed of in considering the motion to dismiss the appeal. The reason in support of that motion, that the appeal was taken pending a motion for a new trial and before the judgment was rendered, has, by agreement of counsel, been waived and abandoned. Another ground, that the exception was not signed during the term at which the case was tried, and that the order extending the time was not passed during that term, has been relied on, but we think it very clear it cannot be sustained. The rule of court set out in the record, provides that every bill of exceptions taken in the progress of the trial must, if required by either party, be prepared and settled before the verdict is rendered; and in every case, unless otherwise expressly allowed by the court, the bill of exceptions shall be prepared and submitted to the court during the sittings of the term at which it shall have been taken. The case was tried at the January Term, 1879, of the City Court, and on the morning of Monday, the 12th of May, 1879, which was the first day of the following term, before the adjournment of the January Term, and before the calling of the May Term, the court, upon application of the defendant, passed an order allowing him five days from that date to prepare and file his exception, and within that time it was prepared and signed. There is nothing to show that the "sittings" of the January Term did not continue during the whole term, and the question, therefore, is, was the order extending the time passed during that term? This question is conclusively settled by Townshend v. Chew, 31 Md. 247, where it was held that the term continued until the call of the next succeeding term, unless it affirmatively appeared that before that time it had, by order of the Judge, been adjourned sine die. In that case, a motion to strike out a judgment was made on the first day of the term next succeeding that at which it had been rendered, but before the meeting and call of the court for that term, and it was held that this motion was made during the same term at which the judgment was rendered, and, consequently, no appeal would lie from the order, subsequently passed on that motion, striking out the judgment. We are unable to draw any distinction between that case and this, and therefore, hold that the order extending the time was passed during the term at which the case was tried.

The only exception taken by the appellant, the defendant below, was to the refusal of the court to allow him to file the plea of limitations to the second, third and fourth counts of the amended declaration. The action was for slander, and was instituted on the 30th of September, 1878. The original declaration contained two counts, charging the defendant with speaking of the plaintiff words which imputed the crime of larceny. The words in the first count are: "Fox stole my guano and sold it to Dave Specht," and in the second, "he stole my fertilizer, and sold it to David Specht." The defendant pleaded not guilty, and the trial was begun on the 17th of April, 1879. The plaintiff offered testimony tending to prove that the defendant in the fall of 1877, between one and two years ago, spoke of Fox these words, "as much as I have done for the dirty rogue, I have sent guano up from Baltimore to put on my place, and instead of putting it on my place, he sold it to Dave Specht." As soon as this testimony was delivered the plaintiff asked and obtained leave to amend, and on the same day filed his amended declaration in which the first count of the original narr. was retained, but three others of an entirely different character were added. Of these the second only need be stated, as the other two merely vary the words. It avers that the plaintiff was employed by the defendant in cultivating his farm in Frederick County, and in such employment was acting as the agent of the defendant, and that the defendant had sent to the plaintiff while so employed, a large quantity of guano to be put by the plaintiff on said farm of defendant, and that the defendant falsely and maliciously spoke and published of the plaintiff these words, "Fox sold some of my fertilizer to Specht," meaning that the plaintiff had feloniously embezzled the fertilizer so sent and belonging to the defendant, and had sold the same to one Specht, and had fraudulently and feloniously appropriated the proceeds of such sale to his own use. Immediately upon the filing of this amended declaration, the defendant asked leave to file the plea of limitations to all the counts of it except the first, but this leave the court refused.

It is very clear these counts make an entirely new case. They charge the speaking of words, which under the statements of the colloquium, impute to the plaintiff the statutory offense of embezzlement, and not the common law crime of larceny. The amendment was a material one, for without it the words set out in these counts could not have been given in evidence, and no case could have been made out by them against the defendant. The occasion for the amendment was brought about through no fault on his part. No continuance was allowed, and as soon as it was filed the defendant was compelled to plead at once to this amended and new declaration. We are all clearly of opinion that under the circumstances he had the right to...