Wilmer v. Placide
| Decision Date | 08 January 1924 |
| Citation | 125 A. 60,144 Md. 372 |
| Parties | WILMER v. PLACIDE. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Frank, Judge.
Action by Edwin M. Wilmer against Susan E. Placide. Judgment for defendant, and plaintiff appeals. Affirmed.
David Ash, of Baltimore, for appellant.
Harry M. Benzinger and Henry H. Dinneen, both of Baltimore, for appellee.
This court expressed, at the time, the regret it felt in being compelled to reverse the judgment reviewed in Wilmer v Placide, 137 Md. 107, 111 A. 822, by reason of the error of the lower court in refusing to permit the plaintiff to introduce any further testimony in the case. We referred to the fact that there were seven counts in the declaration only two of which in terms named the Madison avenue property connected with which there had been so much litigation, and that there had been no demurrer filed to the declaration or to any of the counts in it. After citing some decisions to show that, in passing on the admissibility of evidence the court was required to examine the pleadings in order to ascertain whether the evidence was admissible, we said:
"There is nothing before us to show what was to be offered by the plaintiff, and we know of no case which would authorize us to treat an objection to evidence as equivalent to a demurrer and thereby enable us to pass on the sufficiency of the declaration, or the different counts."
We said enough to remind attorneys of the position this court has taken when it was sought to obtain relief from a judgment or decree alleged to have been obtained by perjured testimony and to "show how suits for malicious prosecution in civil cases, including the alleged abuse of process of courts, are regarded by it, and not encouraged," and we did assume that no attorney familiar with the cases referred to by us in that opinion would ask this court, or the lower court, to give relief under such a declaration as the one in this case, on such testimony as there is in this record, and other records to which these litigants were parties, which have been before us. If we could have legally known, as we know now, the kind of evidence the appellant proposed then to offer, and the lower court excluded by its ruling in that case, we would not have felt bound to reverse that judgment. It is trifling with the court to ask it, with the record in this case and the records and decisions of this court in the prior cases between these parties before it, to reverse the judgment now appealed from.
It is not necessary, for the purposes of this appeal, to refer to them, but any one concerned, or curious to know what has already been decided by us, can be gratified by referring to Wilmer v. Placide, 118 Md. 305, 84 A. 491; Wilmer v. Placide, 119 Md. 49, 86 A. 43; Wilmer v. Placide, 123 Md. 532, 91 A. 561; Wilmer v. Placide, 127 Md. 340, 96 A. 622, in which case this court, through Judge Stockbridge, said:
"For all practical purposes the bill is one under which the complainant seeks to obtain a retrial of the questions which were involved and had been passed upon in the case reported in 118 Md., and the grounds upon which this was asked to be done were, first, fraud; and second, newly discovered evidence."
The fraud alleged was said to consist of perjured evidence in the trial of the first case, and the allegation as to newly discovered evidence consisted in the discovery of certain witnesses, who it was averred would contradict the perjured evidence, and that such witnesses were beyond the reach of the complainant, or that he was ignorant of them at the time. An order sustaining a demurrer to the bill of complaint was affirmed and the bill dismissed in that case. The next one is Wilmer v. Placide, 128 Md. 168, 97 A. 363; then Wilmer v. Placide, 131 Md. 399, 102 A. 541, the latter being an appeal from a decree setting aside a deed from Wilmer to his sister, alleged to be fraudulent, which was affirmed; and that opinion refers to the previous cases, and states:
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