Farmers & Merchants National Bank v. Harper

A judgment by confession against the appellee, entered under an ostensible power in a promissory note, having been stricken out as the result of a hearing on the appellee's motion to that end, alleging that her name appearing on the note was forged, the case was tried before a jury upon that issue and the defense was sustained by the verdict. The only exceptions in the record were taken because the lower court overruled motions that the leave which it had given the defendants to file a supplemental plea, specifically denying her signature to the note in suit, be rescinded, and that the pleas filed in pursuance of the leave be not received. The plea thus objected to was in addition to the general issue pleas, upon which the plaintiff had already joined issue. It was contended by the plaintiff that the court had no discretion to permit the pleas to be amplified in the manner indicated. That contention was made because of the following provision of the Code (article 75, section 28, sub-section 108): "When ever the partnership of any parties or the incorporation of any alleged corporation, or the execution of any written instrument filed in the case is alleged in the pleadings in any action or matter at law, the same shall be taken as admitted for the purpose of said action or matter, unless the same shall be denied by the next succeeding pleading of the opposite party or parties."

The execution by the defendant of the note here sued on was not denied in the next pleading as originally filed, and if the trial court had no power to allow the additional plea by way of amendment, the case must be remanded for a new trial, from which the defense of forgery is excluded, although a jury has found that defense to be valid.

It is provided by section 39 of article 75 of the Code: "In all suits and actions at law, any of the proceedings, including the writ of summons, may be amended so that such case may be tried on its real merits and the purposes of justice subserved; writs may be amended from one form of action to another when the ends of justice require it; and any amendment may be made at any time before the jury retire to make up their verdict in cases of jury trial; and in cases of demurrer and other trials before the court, at any time before judgment is entered."

This provision and the one first quoted are parts of the same Code article, on the subject of pleading, practice and process at law. They should be construed, if possible, as being in harmony, rather than in conflict, and neither should be so applied as to nullify the purpose to which the other is directed. The avowed purpose of the provision relating to amendments is to promote the ends of justice by enabling the courts to bring cases to trial on their real merits. It was the obvious design of the other provision to relieve the plaintiff of the necessity and expense of producing evidence as to particular allegations which the defendant did not intend to dispute. In the absence of a denial by the defendant of an alleged partnership, incorporation, or signature, the fact so averred is directed to be taken as admitted for the purposes of the action. As a regulatory measure it was provided that the denial should be made in the next succeeding pleading. If this case had proceeded to trial without a plea specifically denying the execution by the defendant of the promissory note mentioned in the declaration, the plaintiff would not have been required to prove its execution, and the defendant could not have been permitted to contest the suit on the ground that her alleged signature on the note was not genuine. Banks v.McCosker, 82 Md. 518; Tippett v. Myers, 127 Md. 527; CitizensIns. Co. v. Conowingo Co., 113 Md. 430; Fredericktown SavingsInstitution v. Michael, 81 Md. 487; McCarty v. Harris,93 Md. 741; Reilly v. Union Protestant Infirmary, 87 Md. 664; Abbottv. Bowers, 98 Md. 525; Fifer v. Clearfield Coal Co.,103 Md. 1; Norfolk and Western R. Co. v. Hoover, 79 Md. 253. But when the execution of the instrument which is the basis of the plaintiff's claim is in fact denied in the next pleading, whether as originally filed or as amended, before the case goes to trial, the intent of the statute that the plaintiff shall have due notice as to the need of proof on that subject is fully effectuated. If the defense is interposed so near to the time of trial as to place the plaintiff at a disadvantage in regard to the production of the requisite proof, his interest can be properly protected by the exercise of the court's authority to postpone the case in order that it may be fairly tried. The inconvenience which may be incident to such a course would be far less serious than the hardship to the defendant of being absolutely deprived of a legitimate defense. I think the statute in question should not be so strictly interpreted and applied as to have that effect in a case where its real purpose has been accomplished. In none of the cases cited did the rulings of this Court have such a consequence. They were cases in which no special pleas denying the alleged partnership, incorporation, or execution of a written instrument, had been proposed. The question as to the right of the court to permit such a defense to be pleaded by amendment of pleas already filed was not involved in those cases. It is a broad and salutary power which the amendment act confers, and the exercise of such a power in this case was urgently needed in order that it might be tried on its merits and the purposes of justice thereby subserved. The inadvertent omission originally to accompany the general issue pleas with one denying the defendant's alleged signature could not have misled the plaintiff into the belief that the signature was to be admitted, since the previously entered judgment had been vacated, after a hearing, and the case opened for trial, in order that the defense of forgery might be interposed. So far as the development of the plaintiff's case at the trial was concerned, no injury whatever resulted from the action of the court in allowing the pleas to be amended, but the effect of a contrary ruling upon the defendant's interests would have been disastrous. It would have prevented the trial of the case on its merits, and would have required a verdict for the plaintiff in a suit to which there appeared to be a good defense. In my opinion, the lower court was right in refusing to so rule in regard to the pleadings as to compel such a result.