Sittig v. Birkestack

• Decision Date: 19 June 1873
• Citation: 38 Md. 158
• Parties: HENRY SITTIG v. HENRY BIRKESTACK.
• Court: Maryland Court of Appeals

38 Md. 158

HENRY SITTIG v. HENRY BIRKESTACK.

Court of Appeals of Maryland

June 19, 1873

APPEAL from the Baltimore City Court.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, GRASON, MILLER and ROBINSON, J.

Edward Otis Hinkley, for the appellant.

John Henry Keene, Jr., for the appellee.

BARTOL C.J., delivered the opinion of the Court.

After the decision of this case on a former appeal, 35 Md., 273, a new trial was had, which resulted in a judgment in favor of the plaintiff below, from which this appeal was taken. There are six bills of exceptions sent up with the record. The defendant also appealed from the judgment of the Court below, in overruling his motions for a new trial, and in arrest of judgment.

The exceptions will be disposed of in their numerical order.

First Exception. The note sued on, expresses a consideration on its face, it was therefore unnecessary for the plaintiff, in the first instance, to offer evidence of the consideration; though it was competent for him to do so and such evidence was clearly admissible; this was decided on the former appeal. It appears that when the plaintiff who was the witness, stated that "he had loaned Austermuhle $1500," the defendant "objected to any testimony respecting the loan of $1500." This objection was properly overruled by the Court, whereupon the plaintiff's counsel, without proceeding farther, "waived the testimony and proposed to withdraw it from the consideration of the jury," which the Court allowed him to do, and thereupon the defendant excepted. The testimony as we have said, was admissible; but certainly the defendant after objecting to it, cannot be heard to object to its being voluntarily waived and withdrawn from the consideration of the jury.

Second Exception. The evidence being closed, three prayers were offered by the plaintiff, these were rejected, and are not inserted in the record. The defendant offered ten prayers; of these the plaintiff conceded the first, second, fourth, and fifth, the others were rejected; and the Court proceeded to give an instruction to the jury, and the defendant excepted. The questions arising upon the defendant's prayers will be considered in disposing of the sixth bill of exceptions, where they are all set out together with five additional prayers, making fifteen in number. It is unnecessary to consider the Court's instruction embodied in this bill of exceptions; because it was afterwards revoked by the Court. Its action in this respect forms the subject of the

Third Exception, which presents the question whether the Court, after having given an instruction, had the power during the trial to revoke the same, and withdraw it from the jury? On this question we entertain no doubt. The Court has the power at any time during the trial to modify its instructions to the jury, or to revoke them entirely, if upon reflection it is considered that they have been erroneously given. Goldsborough vs. Cradie, 28 Md., 479. It would be strange, if such a power did not exist; and stranger still, if a party after excepting to an instruction as erroneous, should be heard to complain, because it was afterwards revoked and withdrawn from the jury.

Fourth Exception. After the third bill of exceptions was signed, the plaintiff asked leave to amend the declaration which was granted, and he proceeded to add a tenth count thereto; the defendant's counsel endorsing an agreement thereon, "that the amendment shall be considered to be made without the filing of a new declaration." The defendant requested time to plead to the amended narr., and asked for a continuance of the case, which application was refused by the Court, and the defendant was required to plead at once; he then demurred to the declaration, and the demurrer being overruled, he filed three pleas to the amended declaration as follows:

"1st. That he is not indebted as alleged.

2nd. That he did not promise as alleged.

3rd. That said promissory note was obtained by the plaintiff by fraud and misrepresentation."

Issue being joined thereon, the defendant filed his suggestion in the usual form, with a prayer for a removal of the cause; which the Court refused, and thereupon the defendant excepted.

The trial of the case having been commenced it was too late to make the application for its removal, this was decided in Price vs. The State, 8 Gill, 297.

The amendment of the declaration having been allowed by the Court below, made no difference in respect to the right of removal. This point was expressly decided in Adams Ex. Co. vs. Trego, 35 Md., 47, 61. It was there said "the pending trial did not terminate by the leave to amend; for as the issue was not materially changed by the amendment, the jury was not required to be re-sworn; but all the evidence previously given remained before them as if no amendment had been made"

In such case, it was held "that the making of the amendment afforded no ground for allowing the application for removal." There the application was for the removal of the case to a Federal Court, under the Act of Congress; but the question so far as it regards the time of making the application was the same as here presented.

Fifth Exception. We do not understand this exception to be seriously insisted on by the appellant's counsel. It is sufficiently answered by what has been said in disposing of the third bill of exceptions. The Court having receded from its action, and revoked the instruction first given, the defendant's counsel clearly had no right to insist that the instruction so revoked, should still be considered as its unreversed rulings.

The Sixth Exception was taken to the action of the Court below, upon the prayers. We shall first direct our attention to those of the defendant, fifteen in number. The first, second, fourth, fifth, eleventh and twelfth, were conceded, the fourteenth was granted by the Court, and the others, viz: the third, sixth, seventh, eighth, ninth, tenth, thirteenth and fifteenth were refused.

The cause of action is described in 35 th Md., 276; it is a promissory note signed by H. Austermuhle, for $1500; on the back are the names Catharine Austermuhle, (who was the wife of H. Austermuhle,) and Henry Sittig, the appellant. The name of the payee was in blank, and at the former trial, was filled by counsel...