Farmers' McHts' Bank v. Harper , 153 Md. 128 ( 1927 )

The re-argument in this case was upon a question not suggested or considered when the case was originally heard on appeal. That question is whether the appellant corporation is entitled to have the judgment reversed, because the plea of forgery was not filed at the proper stage of the pleadings, when it voluntarily joined issue on the plea and proceeded with a trial on the merits in which the defense of forgery was sustained by the verdict of the jury. Reversal of the judgment and remand of the case for a new trial, on the ground of the objection to the filing of the plea of forgery, will result in the total exclusion of that issue when the case is retried, although the jury in the former trial found from the evidence that the note sued on was forged. It is now argued that such an unfortunate result can be obviated by the application of a rule which this Court has repeatedly utilized to serve the practical ends of justice under conditions analogous to those existing in this case. The rule thus invoked is undoubtedly technical, but it has been applied to prevent other technical rules from causing manifest injustice.

In Shoop v. Fidelity Deposit Co., 124 Md. 30, the trial court granted a motion of the defendant to substitute a new plea for the pleas filed in the first instance. A replication to the later plea was filed by the plaintiff. The case was tried before a jury, and after a verdict and judgment in the defendant's favor the plaintiff appealed, on the ground that the action of the court in allowing the substitution of the plea was erroneous. But this Court said: "In the first place, by the filing of replication and proceeding to trial the plaintiff waived her right to raise on appeal the correctness of the ruling of the court. The proper course to have pursued, if it was desired to call in question the correctness of that ruling, would have been to decline to reply and suffer a judgment by default to be entered against her and appeal from such judgment. Not having done so, she is now precluded from raising that question."

In support of its conclusion in that case the Court citedTraber v. Traber, 50 Md. 1. The question there, on appeal by the plaintiff from a judgment against him, after trial on the merits, in a suit under the Speedy Judgment Act of Baltimore City, was whether a motion by the plaintiff for a judgment in his favor, because of alleged insufficiency of the affidavit to the pleas, was properly overruled. Chief Judge Bartol, speaking for the Court, said:

"It appears, however, from the record, that upon the trial of the case upon its merits, in the circuit court to which it was removed, the verdict of the jury was in favor of the defendant. The plaintiff was, therefore, not injured by the ruling of the Court of Common Pleas on his motion.

"The pleas were valid in themselves, the only objection of the appellant was that they were not verified by affidavit, as required by the Act of 1864. But their truth was established by the verdict of the jury, and the want of an affidavit or the insufficiency of the affidavit accompanying them became altogether immaterial.

"We express no opinion, therefore, upon the question whether the affidavit was or was not in conformity with the requirement of the seventh section of the Act of 1864. The course pursued by the appellant in joining issue upon the pleas, and the result of the trial upon the merits, preclude him now from raising the question of the regularity or sufficiency of the affidavit, or asking a reversal of the judgment on account of any defects therein.

"If the appellant desired to raise that question on appeal, his proper course was to refuse to join issue on the pleas, and suffer judgment by default. After the verdict against him on the merits, he cannot be heard to say there was no sufficient plea."

In Wilkin Mfg. Co. v. Melvin, 116 Md. 97, the principle of waiver was applied to the action of the plaintiff in replying to a plea of limitations after a motion to strike out the plea had been overruled. Chief Judge Boyd, speaking for the Court, said: "That may be a technical question, but upon what principle can we review that motion? Prior to the Act of 1867, if a demurrer was overruled and the party demurring then pleaded, he waived his right under the demurrer. 1 Poe, Pl. Pr., sec. 591. Under that act (now section 8 of article 75 of the Code), when a demurrer is overruled, the party demurring has the right to plead over, without withdrawing his demurrer, and upon appeal is entitled by virtue of the terms of the statute to have the question at large arising upon the demurrer decided and determined, as if he had not pleaded over. But that section does not include motions, and if a plaintiff makes a motion to strike out a plea, and upon it being overruled replies to the plea, there is no statute reserving his right to still have his motion reviewed. * * * "We have not found any case precisely in point, but in Stockett v. Sasscer, supra, the replication to the plea of limitations and the ne recipiatur were filed the same day, but the Court held that there was a waiver of the time for filing the plea. In that case an exception was noted and a bill of exceptions in the record. * * * There are cases in this state which are very analogous. In Smith v. Woman's Medical College,110 Md. 441, the plaintiff moved for a judgment by default, for want of sufficient pleas and affidavit of defense, but the court overruled the motion, and the plaintiff refusing to join issue upon the defendant's pleas, judgment for the defendant for costs was entered. From that judgment the plaintiff appealed. It was there said: `The plaintiff pursued the course heretofore approved by this Court to test the sufficiency of the defendant's pleas, for had he joined issue thereon he would thereby have withdrawn the case from the operation of the Practice Act, and placed it upon the footing of a suit at common law.'"

After quoting from the decision in Traber v, Traber, supra, the opinion in the Melvin case proceeded as follows: "So when a defendant offers a prayer at the conclusion of the plaintiff's evidence to take the case from the jury, and it is rejected, if he proceeds with the case and offers evidence himself, the error, if any, in rejecting the prayer, is waived and cannot be reviewed on appeal. Barabasz v. Kabat, 91 Md. 53. That decision was made notwithstanding the Act of 1894 provided that `the defendant shall not be precluded from offering evidence of defense, but any defendant in any such action may offer evidence of defense as fully and to the same extent as though such prayer had not been offered.' But inasmuch as it did not provide, as the Act of 1867 did in reference to demurrers, reserving the right of appeal, we held that the appeal did not bring up for review the ruling on a prayer so offered. Now if a plaintiff who has the absolute right to a judgment under the Practice Act, unless pleas and affidavits be filed as required, will waive his right to such judgment by filing a replication to the pleas, upon what principle should a plaintiff be permitted to reply to a plea of limitations, and then, if he loses his case, rely on a motion made to strike it out? How does an appeal from the judgment bring up his motion when he has thus waived it? * * * The proper practice would have been to decline to reply, and then, upon judgment being entered for the defendant, an appeal could have been taken and the question regularly determined, whether the plea was filed in time."

The same principle has been recognized also in National Building Assn. v. Gosnell, 116 Md. 640; Farmers Bank v.Hunter, 97 Md. 148; Laubheimer v. Naill, 88 Md. 174; Huttonv. Marx, 69 Md. 252; and Commercial Credit Corp. v. Schuck,150 Md. 367. In the case last cited the principle of waiver was held not to be applicable because the plaintiff declined to join issue on the pleas, when refiled after amendment of the affidavit accompanying them had been permitted, and the court directed the clerk to join issue for the plaintiff, "thus removing the possibility of judgment for want of replication."

But in the present case the plaintiff voluntarily filed a replication to the plea of forgery, and after a verdict for the defendant on the merits of the issue joined on that defense, the rule of waiver frequently applied by this Court should, in my opinion, prevent a reversal and remand of the case with a view to the exclusion of the issue thus accepted and decided. The exception taken by the plaintiff to the allowance of the plea of forgery could not change the legal significance and effect of his conduct in filing a replication to the plea and participating in a trial on the merits. In order to reserve for this Court's consideration the question as to the defendant's right to file the plea presenting the only issue of fact in the case, the plaintiff should have declined to reply and submitted to a judgment by default, for want of replication, and should then have appealed from that judgment. Not having pursued such a course, the plaintiff should be precluded from questioning on appeal the propriety of the lower court's action in granting leave to file the plea tendering the issue which has been determined by the verdict.

It is said that the cited cases which arose under the practice acts may be distinguished from common law actions, like the one at bar, with respect to the application of the rule upon which the appellee relies. No such distinction was discovered by this Court when it decided the common law Melvin case and cited two practice act cases as being "very analogous." It evidently saw no reason why a motion in a common law suit that a plea be stricken out or not received should be given any higher consideration, in regard to reviewability, than motions for similar purposes in suits under the practice acts. In both classes of cases it was the election of the plaintiff to accept by his replication the issue tendered by the plea and to have it tried on the merits that was held to preclude him from complaining on appeal that the issue should not have been joined. The simple alternative, if the plaintiff desires an appellate ruling on his objection to the plea, is to adopt the method, clearly and repeatedly indicated by this Court, of declining to reply to the plea and submitting to a judgment against him on the issue of law thus presented. This requirement is criticized by the present appellant as subjecting a plaintiff to the hazard of submitting to an adverse judgment on a question of law in order to have that issue reviewed on an appeal which may result in an affirmance. The inconvenience of conducting successive appeals in the progress of the same suit at law is also emphasized. But those considerations should yield to the reasons, founded in elementary justice, which oppose such a consequence to the defendant as the acceptance of the plaintiff's theory will produce. There could be no more serious hardship to a defendant than to go through a trial on an issue of fact involving a meritorious defense, and, after a verdict and judgment in his favor, to be required, as the result of a reversal on appeal, to undergo a new trial in which he cannot make his sole and previously vindicated defense merely because of a technical irregularity in the pleading by which the issue was raised. To avoid such a result it is only necessary to apply the rule now invoked by the appellee and heretofore enforced by this Court in a series of cases from which, in my judgment, the present case is not distinguishable in regard to the principle involved.