Taylor v. Sindall

• Decision Date: 10 February 1871
• Parties: LORENZO D. TAYLOR AND ELIZA J. TAYLOR, his Wife, v. JOHN H. SINDALL.
• Court: Maryland Court of Appeals

34 Md. 38

LORENZO D. TAYLOR AND ELIZA J. TAYLOR, his Wife, v. JOHN H. SINDALL.

Court of Appeals of Maryland

February 10, 1871

APPEAL from the Court of Common Pleas.

Assumpsit. This action was originally instituted in the name of John C. Welch, against the appellee. On demand of the defendant a bill of particulars was filed, showing an indebtedness to Eliza J. Taylor, one of the appellants. After the issue was made up, the plaintiff's death was suggested, and the cause continued until September Term 1864, when it was referred to Wm. Sheppard Bryan, Esq., for arbitration. While the cause was under reference an agreement was entered into, in writing, making the appellants plaintiffs in the place of the original plaintiff, and was filed with the arbitrator 21st of December, 1864. On the 29th of the same month the arbitrator filed his award in favor of the appellants. Exceptions to the award were filed, argued and overruled, and judgment was entered thereon on the 15th of March, 1865. On the 1st of May, 1870, a motion was made to strike out the judgment "for irregularities apparent on the face of the proceedings," and on the 28th of June following, the Court (GAREY, J.,) ordered the judgment to be stricken out, and directed the clerk to enter up proper continuances of the case until May Term, 1870.

From this order the present appeal was taken.

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

James Frame, for the appellants.

The record in this case discloses neither fraud, deceit nor surprise in obtaining the judgment. The motion to strike out is founded upon an alleged irregularity in substituting, by agreement of counsel, the appellants, who were, in fact, the real plaintiffs in interest as shown by the bill of particulars, as plaintiffs instead of John C. Welch, while the matter was under reference. In this there was no irregularity. Any thing can be done by consent or agreement. The agreement was a part of the reference, and its effect was to docket a new suit by consent. The proceeding was substantially that referred to in Shriver vs. The State, 9 G. & J., 12.

It is no objection to the validity of the award in favor of the appellants, that the suit was instituted originally by another party. It is not even necessary that there should be a declaration. An award cures all antecedent irregularities or defects. Dorsey vs. The State, 3 H. & McH., 388; Ing vs. The State, 8 Md., 296; Morril vs. Gold, 1 Cushing, 460 Eddy vs. Sprague, 10 Vermont, 217; Ebert vs. Ebert, 5 Md., 354.

Henry D. Loney, for the appellee.

By the death of John C. Welch the suit abated, and any subsequent proceedings in the case, unless a new plaintiff was substituted under the provisions of the Statute, were void. Code, Art. 75, sec. 29, and Art. 2, sec. 3; Richards vs. Maryland Ins. Co., 8 Cranch, 85; 2 Saunders' R., 72, k; Tidd's Practice, 822, 823, 838, 932, 933, 1116; Finney vs. Ferguson, 3 Watts & Serg., 413; Checchi vs. Powell, 6 Barn. & Cress., 253.

At the time of the reference to the arbitrator, there was no plaintiff in Court. At January Term, 1864, the plaintiff's death was suggested. In September Term, 1864, the reference was made. Trail, use of Buckey, vs. Snouffer, 6 Md., 308.

The entry of the judgment by the Court on the award in favor of a party not the legal plaintiff, was wholly irregular, and may properly be stricken out. Butterfield vs. Levy, noted in 30 Md., x, among the cases unreported.

The substitution of new plaintiffs was made during the reference, and was irregular. Price vs. Tyson, 2 Gill & John., 475. The award was returned in the case of Taylor and Wife vs.

Sindall, which was a clear irregularity, the case returned being different from the one referred. Price vs. Thomas, 4 Md., 521; Biddell vs. Dowse, 6 Barn. & Cress., 255.

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

This is an appeal from a judgment of the Court of Common Pleas rendered on the 28th day of June, 1870, striking out a judgment which had been rendered in the same Court in favor of the appellants against the appellee, on the 15th day of March, 1865. The motion to strike out the judgment was filed on the 31st day of May, 1870, and the cause assigned in support of the...