Hatton v. McClish

Mason, J., delivered the opinion of this court. There are two modes by which notice may be given of the execution of a foreign commission to take testimony. One is, actual notice, to be given directly by the commissioners; the other is constructive notice, and results from the filing of interrogatories in the office of the clerk before the commission goes out. The object of this notice is to enable the opposite party to file cross-interrogatories, and in either case the notice must be given a reasonable time before the testimony is taken. In the case now before us, the defendant had both actual and constructive notice of the time and place of the execution of the commission, but in each instance it is denied that the notice was sufficient in point of time. [415] We need not decide whether the actual notice, or that given by the commissioner, was sufficient or not, as we regard the constructive notice fully sufficient in point of law. At the November term of the court, the commission was ordered by consent of parties. On the 10th February following the plaintiff filed his interrogatories, and on the 24th of the same month the commission issued, but the precise time of its going out of the office does not appear from the record-. The counsel on both sides have assumed, that it was necessary for the commission to lie in the office a certain time before going out, in order that the notice resulting from the filing of the interrogatories could be availing. We find no authority nor any sound reason for such an assumption. None of the cases on this subject advance such a notion. They all state that the interrogatories should be filed a reasonable lime before the commission goes out; from which it would appear that the precise lime when it was issued, or how long it had remained in the office after it was issued, were circumstances wholly immaterial: Parker vs. Sedwick, 5 Md. Rep., 281, and the cases there cited. We can discover no good reason why it should be otherwise. The commission, itself, furnishes no-material information to the opposite party other than he had already received from the order of the court directing the commission to issue. The facts suggested by each are the same, and are simply the names of the commissioners, the place to which the commission issues, and the parties to the suit. The balance of the commission is usually mere matter of form. The interrogatories furnish the material and only information necessary to enable the adverse party to file his cross-interrogatories, if he deems any important, and if they remain in the office a reasonable time before the commission goes out, it will be sufficient. In this case they were filed on the 10th of February, and the commission having been issued on the 24th, did not of course go out before that day. This was notice enough, the theory being, that notice will be presumed where the interrogatories have remained a sufficient time in the office before the commission previously ordered by the court goes out. As the practice upon this subject has been somewhat loose [416] and uncertain, we will take this occasion to suggest to the different courts of the State the propriety of adopting some rule of court, fixing a time within which the interrogatories of the party applying for the commission should lie in the clerk’s office before the commission goes out, in order to create presumptive notice; or, requiring the party actually to serve’ a copy of the interrogatories upon the opposite party in time to enable him to file his cross-interrogatories. Besides the question we have just considered, the first except tion shows that the answers of the several witnesses to the third and fourth interrogatories were objected to, and the objection overruled by the court. The record shows, that of the four witnesses examined under the commission, only one, (Crawford,) professed to know anything in regard to the information sought to-be elicited by the third and fourth questions, and he only answered the fourth. Surely, a response by a witness to an interrogatory, that he knows nothing of the matters therein referred to, is riot liable to objection. The objection then can only relate to the answer of Crawford to the fourth question. By reference to that answer it will readily appear, that much of it was legal and admissible, and though the balance may not have been, yet as the whole was objected to, the court was right in not sustaining the objection. The same remark is applicable to the general objection to the whole testimony returned wjth the commission, which is the third point raised by the first exception. Part of this evidence being admissible, it would have been error to reject the whole. Budd vs. Brooke, 3 Gill, 220. Waters vs. Dashiell, 1 Md. Rep., 474. The other questions so fully discussed by the counsel were supposed to arise under the appellant’s prayer, the rejection of which constituted the second exception. The point first to be settled is, whether the prayer is sufficiently definite and specific, under the act of 1825, ch. 117, to raise the points which the appellant wishes us now to decide? We think the prayer was too general, and therefore was properly rejected. It prayed the court “to instruct the jury, that there was no evidence on which,under the pleadings in the cause, they could find for the plaintiff, and their verdict must be for the defendant.” [417] There have been a great many decisions by the Court of Appeals, (between twenty and thirty,) upon this particular subject, and it would be a far more difficult than profitable task, to attempt to reconcile them. We can safely say however, that we think the general tenor of those decisions has been to discountenance such general prayers, and indeed in most of those cases, where questions under general prayers have been cousidered, they have been, where the mind of the court appears not to have been particularly called to the structure of the prayer, but rather to the questions discussed under it, and the decisions confined to the latter. We can discover no material difference between this and the case of Penn vs. Flack, 3 Gill & Johns., 369, where the prayer was, “that the plaintiff, upon the evidence, was not entitled to recover upon either countin the declaration/’ To our minds no argument has been addressed why we should depart from this decision, which was one of the earliest upon the subject, and which we think correctly expounds the true theory of the act of 1825, ch. 117, and in future will endeavor to adhere to that exposition. The prayer in the present case does not rest upon the assumption, that there was no evidence or an entire failure of evidence to support the issues, but it assumes that there were facts adduced in evidence, but which were not legally sufficient or proper to support the issues. In such a case, under the act of 1825, the prayer should direct the mind of the court specifically to the supposed errors or omissions in the proof, in order that the opposite party might have the opportunity, if he can, of supplying the defects in his proof by new and proper testimony. On the other hand, where there are no facts offered in support of a case, or where the testimony offered has been rejected as incompetent, then a general prayer, that there is no evidence, fyc., would be proper, because no other prayer in such case could be framed; but, as we said, where testimony has been offered and received, legally insufficient to establish the issue, or where there is no evidence to establish a material fact involved in the issue, [418] then the prayer should point out specifically the defects or omissions in the proof. This subject has been recently very fully and correctly reviewed by this court, in the case of Tyson vs. Shueey, 5 Md. Rep., 540, to which we refer, and the cases there cited. Our attention has been called to the verdict of the jury in this cause, which was manifestly erroneous, and the judgment rendered thereon would be reversed if the point was ■properly presented on this appeal. Issues were joined on two pleas, non assumpsit and no assets, and the jury found that the plaintiff did promise, fyc., and assessed the damages, but they say nothing upon the plea of no assets. It might well happen that the defendant in his lifetime, did owe and promise to pay the debt, yet at the same time may have left no assets at his death wherewith to pay the same. A verdict under such circumstances should not be rendered against the administratrix. But as we have said, this point is not before us, as it would have been had there been a motion in arrest of the judgment. Sasscer vs. Walker, 5 Gill & Johns., 102. The case of the State vs. Carleton and others, 1 Gill, 249, does not conflict wdth the views we have expressed as to the mode of presenting this question to the appellate court. In that case, as in this, the judgment was reversed upon other points properly presented on the appeal, and this question was afterwards commented upon incidentally, and the same view taken of it, which we have expressed in this opinion. Judgment affirmed.