Thorne v. Fox

• Citation: 8 A. 667,67 Md. 67
• Parties: THORNE v. FOX.
• Decision Date: 16 March 1887
• Court: Maryland Court of Appeals

8 A. 667

67 Md. 67

THORNE v. FOX.

Court of Appeals of Maryland

March 16, 1887

Appeal from superior court, Baltimore city.

Wm. H. Cowan, for appellant.

Saml. J. Harman, for appellee.

IRVING J.

The appellee sued the appellant and one George Kirmeir copartners, trading as George Kirmeir & Co., upon a promissory note, at four months, for the sum of $2,102.70 with interest. The note was drawn payable to the order of the appellee, and was signed "GEORGE KIRMEIR, JR., & Co." The action was brought in the superior court of Baltimore city on the seventh day of May, 1886, under the act of 1886, c. 184, by filing a declaration, with affidavit and cause of action appended. The affidavit accompanying the declaration is as follows: " State of Maryland, City of Baltimore, etc. I hereby certify that on this seventh day of May, 1886, before me, the subscriber, a justice of the peace of said state in and for the city aforesaid, personally appeared Moses Fox, and made oath in due form of law on the five books of Moses, he being an Israelite, that there is justly owing by George Kirmeir and John Thorne, copartners, trading as George Kirmeir & Co., the defendant in said cause, to the plaintiff, on the annexed promissory note, (the cause of action in said cause,) the sum of two thousand one hundred and two dollars and seventy cents, (with interest from the fifteenth day of January, 1883,) over and above all discounts, to the best of his knowledge and belief." This was signed by William S. Gorton, J. P.

The defendants appeared by different counsel, and pleaded separately. John Thorne, the appellant in this case, pleaded that he was never indebted as alleged, "and that he did not promise as alleged." This plea was filed on the thirteenth day of May, 1886, and was accompanied with affidavit that the plea was true, and that the affiant believed that at the trial he would be able to produce evidence to support the plea, and that he was advised by counsel to file the plea. In that plea was appended the certificate of counsel that he advised the filing of the plea. The other defendant pleaded a like plea, but in his affidavit disputed only $155 of the plaintiff's claim, and admitted $1,947.70 thereof to be due and owing; and judgment was entered against George Kirmeir for the amount admitted in his plea to be due, viz., for $1,947.70, as the statute allows to be done. The issue joined by the plaintiff and Thorne was submitted to the court without the intervention of a jury. The court rendered a verdict for $1,947.70, and rendered judgment therefor. From that judgment appeal was taken.

At the trial but one bill of exceptions was taken. It, in substance, states that the plaintiff submitted his case, "without the introduction of any testimony, upon what he claimed to be the presumption in his favor created by the actual condition of the pleadings. The defendant then offered to prove by witnesses produced in court that no partnership had ever existed between the defendant, John Thorne, and George Kirmeir, but the court refused to allow the introduction of evidence, whereupon the defendant moved in writing to amend his plea, and presented certain amended pleas to be filed." The amended pleas denied the partnership alleged in the declaration, and averred that Kirmeir had no authority to bind the defendant, Thorne. The motion offered to accompany the plea with an affidavit; and the amended and additional pleas, as tendered, were verified with affidavit, and accompanied with certificate of counsel that he had advised the filing of such pleas. The court overruled the motion, and refused to permit the amended pleas to be filed, and the exception states: "Whereupon the defendant excepted to the refusal of the court to allow the amendment, and prayed the court to sign and seal this bill of exceptions."

It thus appears that the sole exception before the court is to the refusal of the court to allow an amendment of the pleadings. The appellant, while conceding that amendment of the pleadings ordinarily is a matter of discretion, and the court's action on such application affords no ground for appeal, contends that in this case it was a tender of an additional plea, and comes within the decision of Schulze v. Fox, 53 Md. 37, where the court allowed an additional plea to be filed. This case of Schulze v. Fox, however, we think has no analogy to this case to sustain appellant's contention. In that case the plaintiff was allowed to amend his declaration, which, when amended during the trial, left the defendant at liberty to plead to it, as no plea had ever been interposed to the declaration as amended. The court, therefore, in refusing the permission to file pleas to the amended declaration, was denying him a right to which by law he was entitled as of right, and the court had no discretion in the premises; and so this court held. The present case falls within the principle and reasoning of the court in Knickerbocker Life Ins. Co. of New York v. Hoeske, 32 Md. 324. That case had been brought under the act of 1864, c. 6. The defendant had interposed pleas without sufficient affidavit, as provided by the statute, to prevent the plaintiff's right to judgment by default for the want of such verified plea. The defendant asked leave to amend, but was denied the privilege. This court decided that, as the act of 1864 entitled the plaintiff to judgment by default for want of a sufficiently verified plea, it was his right, as a matter of law, to have such judgment on demand for it, and when asked for it was too late for the defendant to plead, and that to allow it would defeat the whole purpose of the act of 1864. The positive right which the act secured the plaintiff in such a situation could not be denied him, and the court in such case had no discretion about the proffered amendment, which, if allowed, would have effectually defeated plaintiff's right.

The act of 1886, c. 184, under which this suit was brought and the question here presented arises, is an amendment of the act of 1864, c. 6. In section 170, after making provision for judgment by default in case the declaration accompanied with affidavit was not met by the defendant with a good plea under oath within a specified time, it further provides: "And if the copartnership or incorporation of any of the parties to the suit shall be alleged in the declaration, and the affidavit to be filed therewith, as hereinafter provided, or if there shall be...