Kettlewell v. Peters , 23 Md. 312 ( 1865 )

Bowie, C. J.,

delivered the- opinion of this Court:

The appellee, plaintiff below, declared against the appellant — 1st, for goods bargained and sold by the plaintiff to the defendant; 2nd, work done and materials provided by the plaintiff for the defendant, at his request; 3rd, money lent; 4th, money paid; 5th, money received; 6th, account stated. -To all which the appellant pleaded “he never was indebted as alleged.” A jury being impannelled upon the issues joined, the plaintiff, to maintain his action, proved that the contract made for two thousand peach trees, the value of which was sought to be recovered in this suit, was made by the defendant with one Charles S. Peters, (the appellee,) in the month of March 1857; that the farm and nursery whereon the said trees wére grown, was held in fee-simple by James S. Peters, father of the plaintiff, who had died intestate on the 12th of October 1856; whereupon the appellant moved the Court to non-suit the plaintiff, on the ground that the suit ought to have been instituted in the name of the heirs-at-law of the deceased, but the Court overruled the motion of the appellant, to which he excepted, and prayed this appeal.

Whatever may be the mode of proceeding in other States, this is not adopted in Maryland. The Court may, in its discretion, content itself with a simple refusal of any prayer not sanctioned by the rules of law. Md. Ins. Co. vs. Bathurst, 5 G. & J., 159. When the Court cannot grant the entire prayer as made, though a portion of it, in a seperate distinct form, might have been given, it is not error to reject the whole. Doyle vs. The Comrs. of Balto. Co., 12 G. & J., 484. Gray vs. Cook, 12 G. & J., 236. The motion of the defendant below, being contrary to the practice established in this State, was properly overruled, however sufficient the reasons might have been for defeating the action, if presented in another form, upon which we do not mean to express an opinion in this case. A non-suit must be the voluntary act of the plaintiff. Evans’ Frac., 314. “The expressions common in English books, that the Judge directed a non-suit, and others of a similar import, mean no more than this, that the Judge expressed in that form of words his opinion that the plaintiff was not entitled to recover, and that the party submitted to a non-suit rather than the Judge should enforce his opinion by a direction to the jury as to the verdict.” Id., 315. 14 How., 222, and authorities there cited.

The case of Graham & Parran, vs. Harris, Parran & Co., 5 G. & J., 497, is conclusive on this point. After showing that the Court of Appeals could not reverse the Court below, on certain points which had not been raised below, the Chief Justice (Buchanan) continues thus: “But the appellants proceeded to move the Court to non-pros, the action, on the ground that Parran, one of the appellees, was both a legal plaintiff and a defendant on the record; which, according to the practice of this State, (a jury having been sworn,) the Court properly refused to do, without the consent of the appellees; but proceeded to decide that the action might be sustained. In which we think the Court clearly erred. A man cannot bring an action at law against himself. The same natural person cannot be both plaintiff and defendant on the record.”

The learned counsel for the appellant supposes Chief Justice Buchanan “has been made to say” what he did not intend, as he reversed the Court below for deciding the action could be maintained where the same natural person was both plaintiff and defendant, and yet declared they were right in refusing to non-pros, the plaintiff on that ground. The reason for this course is given by the learned Judge in the parenthesis, (“a jury having heen sworn/’) the motion, according to the practice in this State, was properly refused. If such a motion could not he granted in such an extreme case, it could not he entertained in any, at that stage of the cause. Whether the action could he maintained or not, was another and distinct question. The Chief Justice held the Court helow was right in refusing the motion to non-pros. after the jury was sworn, hut were wrong in deciding the action could he maintained.

(Decided July 11th, 1865.)

So in the present instance, the motion to non-suit the plaintiff, and the reasons on which it is based, are entirely independent. According to the authorities, the motion was untenable, notwithstanding the plaintiff might not have heen entitled to recover. . The hill of exceptions, therefore, presents nothing but the question, whether there was error in refusing the motion; that being determined, it is unnecessary and improper to examine other points which were not necessarily involved.

Judgment affirmed.