Kunkel v. Spooner

Eccleston, J., delivered the opinion of this court. This is an action of assumpsit, instituted by the appellee against the appellants. The first count in the nar is upon a promissory note, and the second is insimul computasset. The defendants put in three pleas: the first, non assumpsit; the second and third, limitations. It appears from the record that the day on which the second and third pleas were filed, the plaintiff’s attorney moved the court to strike them out, which motion was resisted by the attorney for the defendants. The record then states: “Whereupon, all and singular the premises, being seen and heard, and — 469 — by the court fully understood, and it appearing to the court here that the said plea of the said defendants, by them above pleaded, was not filed in the said cause on or before the day designated and fixed by the rules of the court here for filing pleas of the statute of limitations, &c. It is therefore considered by the court here, that the second and third pleas of the said defendants, by them above pleaded, be stricken out,” &c. And then issue was taken upon the plea of non assumpsit, upon which the case was subsequently tried. During the trial the counsel of the defendants asked the court for an instruction to the jury, which was refused, and that refusal was excepted to. The verdict and judgment being in favor of the plaintiff, the defendants appealed. The first question presented by the argument is, whether the court erred in striking out the second and third pleas. It is insisted by the appellants, that the onus of showing the decision of the motion to strike out is correct, rests upon the appellee; that it was his duty to have the rules of court, bearing on the subject, set forth in the record, and that not being done, there is nothing from which it can legitimately appear the pleas were not filed in due time; the mere statement of that fact in the judgment or order not being sufficient for such a purpose, consequently the appellate tribunal must say there was error in sustaining the motion below. This theory, however, is inconsistent with several adjudged cases relating to the action of the courts in reference to their rules. In Rigden vs. Martin, 6 H. & J., 407, it is said: “ There is nothing in the objection, that the decree was passed without setting the cause down for hearing. The court state the cause then stood ready for hearing, and we will presume all prerequisites were complied with.” Various grounds were taken for reversing a decree, in Fitzhugh and others, vs. McPherson, 9 G. & J., 51, one of them being that a certain order had not been properly served. But on page 71, in delivering the opinion of the court, Judge Dorsey says: “In the absence of all direct proof to. the contrary, we regard the statement of the chancellor, in his order of the 1st of April 1884, ‘that the above mentioned order had — 470 — been duly served,’ sufficient evidence of the truth thereof.” And reference is made to Rigden vs. Martin. We find it said, by the same able judge, speaking for the court, in Calwell vs. Boyer, 8 G. & J., 148: “ The third ground relied on by the appellants is, because the order to take the bill pro confesso, and to issue an ex parte commission, passed before the rule to answer expired. We do not feel ourselves at liberty to say that there has been any irregularity in the passage of this order. Neither the rules of Harford county court upon this subject, nor the time of holding its intermediate terms, prescribed by law, appearing before us; and the court certifying that the time to answer had elapsed, we will, in the absence of all proof to the contrary, assume the verity of their statement, and presume that the order pro confesso was legitimately passed. There is nothing in the record to show that the rule to answer extended to the August term. It may by the rules of the court have been limited to some intermediate day, or to the intervening equity term of the county court.” The case of Benson vs. Davis’ Adm’r, 6 H. & J., 272, has been referred to in support of the appellants’ view, that because the rule of court is not in the record, so as to show the correctness of the decision based upon it, the judgment must be reversed, notwithstanding the statement by the court of the ground on which the pleas were stricken out. In the case referred to, the plaintiff was under a rule to file his nar on the first Monday of March term 1821. The formal parts of the original and amended records, (both of which we have examined,) state, that on the first Monday of March 1821, Benson filed his declaration; and after setting out the nar, a rule on Davis to plead is stated, as if laid on the same day. The cause is then said to have been continued until the second Monday of November following. And immediately after stating the appearance of the parties on that day, the amended record proceeds thus: “ Thereupon it appears to the court here, that the declaration aforesaid, of the said John Benson in the plea aforesaid, was not filed in court here in the said plea on or before the first Monday hi March, in the year of our Lord, one thousand, eight hundred and twenty-one, but that the — 471 — said declaration was filed in the plea aforesaid on the eighteenth day of May of the same year; and because the said declaration was not filed in the plea aforesaid, on or before the said first Monday of March, eighteen hundred and twenty-one, it is therefore considered by the court here, that the said John Benson take nothing by his declaration aforesaid,” &c. This judgment of non pros, was reversed by the Court of Appeals, as their opinion clearly shows, upon the principle, that although a plaintiff fails to file his nar by the rule day,but it is filed afterwards, and received, and the defendant is laid under a rule to plead, he has no right, then, to take advantage of the laches of the plaintiff. The plaintiff was under a rule to plead by the first Monday in March 1821; on which day the March term commenced, and. the court say, “must have been continued or adjourned to the following May, for we find the declaration was filed on the 18th of May, and a rule laid on the defendant to plead, as of March term.” The case was continued under the rule to plead to November term, when the judgment of non pros, was entered, because the nar had not been filed by the first Monday in March. Under such circumstances the Court of Appeals might well say: “ If there are any rules of practice in Montgomery county court that justify the procedure in this case, they ought to have appeared in the record. “In their absence, we cannot conceive upon what principle the judgment of nonpros, was entered.” From this, however, it is by no means a correct inference, that if the judgment had simply stated it was rendered, because the nar had not been filed by the rule day, there being no proof to the contrary, and nothing to show that although filed after the rule day it had been received, and the defendant laid under a rule to plead, that the judgment would have been reversed, because the rules were not set out in the record. When the court used the language we have quoted, in regard to the absence of any rules, to justify such a procedure, we understand them as meaning to express strong disapprobation of a nonpros, in such a case. And therefore, not being able to conceive upon what principle it was rendered, if there — 472 — were any rules so directly opposed to their views of correct practice as to justify such a procedure, they ought to have appeared in the record. But surely they could not have been unable to conceive upon what principle a judgment of non prosi had been entered, if in that judgment the court had merely said it was because the nar had not been filed by the rule day, and there was nothing to show the statement to be incorrect, or to show any error in the judgment. And we certainly have no difficulty in conceiving, in the absence of the rules in the present record, upon what principle the second and third pleas were stricken out, when the court have said it was because they were not filed on or before the day designated and fixed by the rules of the court for filing pleas of limitations. In regard to such pleas it is said, in Wall vs. Wall, 2 H. & G., 81: “The plea of limitations has been adjudged not to be a plea to the merits, and the universal practice has accordingly been, never to permit it to be amended, and to demand that it should be filed by the rule day.” In that case the rules of court were not made part of the record, and the opinion of the court, as set forth in the exception, was used as evidence, in connection with other parts of the bill of exceptions, to show that the plea was required to be filed at length, and by the rule day. In Brice vs. Randall, 7 G. & J., 349, bills of exceptions were taken, but they contained no evidence whatever; — the prayers only were set forth in them. In delivering the opinion of the court, Judge Archer says, “Anterior to the act of Assembly of 1825, ch. 117, the court would have entertained the appeal, and would have determined the law of the prayers, upon the assumption, that there was evidence upon which the prayers might be bottomed. “The act of 1825, ch. 117, requires this court to review the points decided below, and if in the case in 2 Har. & John., 376, the court were bound to consider, that evidence was offered below, which would have justified the action of the court, such a rule would and must lead us to the same conclusion here; and on the supposition, that there was evidence before the court and jury, the question presented is sufficiently pointed and specific to call for the judgment of this court.” — 473 — The decisions in the cases which have been noticed, do not, in our opinion, justify a reversal of this judgment upon the ground that there was error in striking out the pleas of limitations. The note sued Upori was drawn by the defendants in favor of “E. Levick <fc Co.,” or order. It was endorsed in blank by “Eben’r Levick & Co.,” and upon it are also the names of “Corner, Willow & Gardner,” and “G. & J. P. Steiner.” It became duel8th-21stof April 1848, and on the 21st of April was protested at the request of the Bank of Penn Township in the county of Philadelphia. The suit was instituted by Wm. M. Merrick) Esq., as attorney for John H. Spooner, the plaintiff; and the same day on which the summons was ordered and issued, Mr. Merrick, as attorney for the plaintiff, filed a nar, the note and the protest, the nar having upon it this endorsement: “The clerk will file this nar, note and protest, and issue summons for defendants. William M. Merrick. May 12 th 1854.” It is admitted that John B. Kunkel and Philip Kunkel, Were partners at the time of the execution of the note, and that John B. Kunkel signed the note by and under the firm prove the endorsement by Eben’r Levick & Co. The plain-name of John B. Kunkel & Co. Evidence was offered to tiff also gave in evidence to the jury the note with the protest; and the defendants offered no testimony or evidence of any kind. They, however, prayed the court to instruct the jury, “that from the pleadings and evidence in this case the plaintiff is not entitled to recover;” and assigned eight reasons why he should not. 1st. Because there is not any legal evidence in this case, before the jury, sufficient to entitle the plaintiff to recover the amount of said promissory note against the defendants. 2nd. Because the said John IL Spooner; the plaintiff, has not offered a particle of evidence to the jury to prove that he has or ever had any right or interest in the promissory note in question, against the defendants, so as to enable him to sustain a suit on said promissory note in his own name. 3rd. Because there is no evidence hi this case to show that — 474 — the said plaintiff was ever in the possession of said promissory note, or that the same belongs to him by delivery or otherwise, or that he ever had any interest in said promissory note. 4th. Because there is not a particle of evidence in the case to prove, that the Bank of Penn Township, in the county of Philadelphia, the holder and owner of said note, on the 21st of April 1848, when it matured, has ever transferred its interest to said promissory note to the said plaintiff either by endorsement or delivery; and because there is no evidence in the case from which the jury can legally infer, that the promissory note in question was ever in the possession of the plaintiff, or that he ever had any right or title thereto by endorsement and delivery, so as to enable the said plaintiff to sustain a suit in his own name. 5th. That in order to entitle the plaintiff to recover in his-own name in this case, there must be evidence that he was, at the time of instituting the suit in this case, the holder and owner of the promissory note in question. 6th. Because there is no evidence in the case to prove that the plaintiff ever had the possession of the promissory note in question, or any title or interest thereto, so as to give him a right of action against the defendants. 7th. Because there is a material variance between the allegations in the plaintiff’s declaration and the evidence offered by the plaintiff to the jury to sustain said allegations in said declaration, in this, that the promissory note in question varies materially from the one declared upon by the plaintiff. 8th. Because it appears, from the plaintiff’s own evidence, that the promissory note in question, belongs to the Bank of Penn Township, in the county of Philadelphia, and that they were- the holders of said promissory note at the time this action was instituted. The instruction asked for was refused, and the defendants ■ excepted. The 7th reason, which is in relation to a variance between the allegata and probata, has been abandoned. It is conceded that Mr. Merrick, as attorney for the plaintiff, ordered the writ in this case, that at the time of doing so he — 475 — filed the nar as^said attorney, and with it the note and protest, which, at the trial, were offered in evidence on the part of the plaintiff. It is certainly true, as a general rule, that possession by the attorney of a party is possession by the party. In Whiteford vs. Burckmyer & Adams, 1 Gill, 145, it is said, “Possession of a note endorsed in blank, will enable the party having it to maintain suit, except mala fides be proved. Courts will never enquire whether a plaintiff sues for himself or as trustee for another; nor into the right of possession, unless on an allegation of mala fides.” And again, on page 146, “A bill paj^able to bearer, or a bill payable to order and endorsed in blank, will pass by delivery, and bare possession is prima facie evidence of title; and for that reason, possession of such a bill will entitle the holder to sue.” On page 147, the court further say, “The act of 1825, ch. 35, provides, that no judgment shall be set aside because of the endorsement being in blank; and in effect gives to a plaintiff all the advantage from a blank endorsement which he could derive from an endorsement in full, so far as his right of action is affected. Any holder, therefore, with a blank endorsement, may now sue in his own name; but the act of 1825 cannot be construed to extend the right of action to one who has no interest in the bill, either as holder or owner.” The principles contained in the first quotation, from the case of Whiteford vs. Burckmyer & Adams, have been adopted, in very explicit terms, by this court, in Ellicott vs. Martin, Love & Co., 6 Md. Rep., 516. Exclusive of the 7th reason, (which has been abandoned,) those which are relied upon in support of the defendant’s prayer may be considered as assuming two propositions. 1st. That there is no proof that the plaintiff was the holder of the note at the institution of the suit. 2nd. .That the protest of the note in the name of the Penn Township Bank, per se, was evidence of such a title to the note, in the bank, that notwithstanding the evidence in regard to the possession of the note by the plaintiff’s attorney, when he ordered the writ, the suit could not be maintained in the name of the plaintiff. — 476 — To neither of these propositions can we yield our assents We cannot adopt the first, because there is no evidence of mala fides, no proof that any other person than the plaintiff claimed title to this note, either at the institution of the suit or subsequently; and there is, certainly, some evidence tending to prove the possession of the note by the plaintiff’s attorney when the suit was commenced. If a note endorsed in blank, only, is protested at. the request of a bank, and suit is subsequently instituted thereon, in the name of a person then having possession of it, the name of the bank at no time having been endorsed upon the note, the protest is no more evidence that the actual ownership of the note, when protested, was in the bank, than that the bank was merely a collecting agent for the real owner; nor does it necessarily show that the party- holding the note after the protest was not the bolder and owner who placed it in bank for collection: consequently such a protest, per se, could not have the effect of defeating aprima facie right of action based upon possession. If so, the second proposition above stated, and having relation to the present protest, must be erroneous. When the circumstances disclosed by the record are considered with reference to the principles announced in the last two cases which have been cited, we cannot entertain the opinion that the court below erred in refusing to grant the prayer of the defendants; and therefore the judgment will be affirmed.* Judgment affirmed.