Heinekamp v. Beaty

21 A. 1098, 74 Md. 388, 1891 Md. LEXIS 58

Opinions

Bryan, J.,

delivered the opinion of the Court.

Beaty and wife brought suit against Heinekamp and Son. On the twenty-third day of September, 1889, the defendants laid a “rule security for costs” on the ground that the plaintiffs were non-residents; and on the thirtieth day of September, 1890, the defendants moved for judgment of non pros, under the rule. On the second day of October the amount of the costs was deposited in Court, and the motion for non pros, was overruled. ■ It is obvious that the defendants obtained the full benefit of the rule requiring the plaintiffs to give security for costs. Although the statute says that the plaintiff shall be nonsuited unless he complies with the rule by the second day of the nest term, it is not to receive a mere verbal or literal construction. The plaintiffs were undoubtedly in default when they failed to give the security at the required time. But the rule of practice is, that the Courts do not enforce defaults sua sponte, and the party who wishes to take advantage of them must make a niotion to that effect. The case had been continued several times before the motion for a non-suit was made. It was decided by this Court in State, use of Wilson vs. McCarty, 60 Md., 373, that an agreement to continue a case must be considered as a waiver for that term of the right to enforce .the “rule security for costs,” and it was said “as the case stood on the docket for trial, the plaintiff might have complied with the rule at any time before judgment of non pros.” ^ In Spencer, et al. vs. Trafford, 42 Md., 1, a rule security for costs had been laid. After a jury had been sworn the defendants stated to the Court that it had just come to their knowledge for the first time that a rule security for costs had not been complied with by the plaintiff, and they moved the Court to stop the trial until the plaintiff should give the security ; the Court refused to do so. This Court Said that the defendants ought to have insisted more promptly on the enforcement of the rule, and that it was waived by going to trial. These decisions show that notwithstanding the positive terms of the statute, there is no peremptory requirement that-the plaintiff shall be nonsuited if he fails to give the security by the second day of the next term in the absence of a motion to that effect. The case falls within the ordinary rule governing defaults ; the motion must be made to enforce the default, and if the rule in question is complied with, before the Court grants the motion, the default is saved. As was said in the case in 60 Md., already cited, in reference to a default under a rule of this very kind, “the plaintiff might have complied with the rule at any time before judgment of non pros.” In the present case the motion for non-suit was made on the thirtieth of September; the Court did not act on the motion until the next day but one, and by that time the security Had been given. Under the decisions above cited the enforcement of the rule at the previous terms of the Court had been waived by continuances. The Court was not obliged to decide the motion insbanter; it delayed a reasonable time, and gave the plaintiff an opportunity to give the security. There was no error in this. We do not see in what way the defendants have been injured. The object of the statute was to entitle them to indemnity against possible loss ; and this indemnity they received.

The declaration in this case contained only one count, which is as follows : “For that the defendants converted to their own use, or wrongfully deprived the plaintiffs of the use and possession of the plaintiffs’ goods— that is to say, one organ.” In Manning vs. Brown, 47 Md., 506, it was held that such a count is in trover. When the verdict is for the plaintiff, the measure of damages in this action is the value of the goods at the time of the conversion with interest from that time to the day of the verdict. Thomas vs. Sternheimer, 29 Md., 268. The first prayer of the defendants, specially referring to the pleadings, states this legal proposition. The Court refused to grant it, and for this error the judgment must he reversed.

A majority of the Court think that what has been said disposes of the case before us, and that it is not necessary to decide any other questions. But the writer of this opinion, wishes to state his own individual views on other questions which were decided by the Court below, and which appear in the exceptions taken at the trial. The defendants caused a writ of replevin to be issued against the plaintiffs under which a certain organ or piano was seized. The writ was returnable before a justice of the peace, who after two returns of “non est,” rendered judgment ex parte for the plaintiffs in the replevin suit, who are the present defendants. The right to proceed to trial and judgment under such circumstances is expressly given in the forty-ninth section of Article 52 of the Code of Public G-eneral Laws. While a judgment in personam cannot bind a party who has not been summoned ; it is well settled that it is competent for the Legislature to authorize judgments binding goods, chattels, lands, tenements, etc., after seizure under legal process ; even if the owner or supposed owner should not be personally summoned. It is on this principle, that attachments are sustained against the prop erty of non-resident debtors. The judgment in replevin legally vested the right of possession in the plaintiffs in that suit, and was sufficient to defeat this action under the present pleadings. But other questions are suggested by the evidence, which the appellees ought to have an opportunity of bringing to a decision under an amendment of the pleadings. The plaintiffs below offered evidence tending to prove that they hadL a good defence to the replevin suit, and that the defendants by false information purposely given through their agent, as to the place of trial and the particular magistrate before whom it was to take place, wrongfully and intentionally prevented them from defending said suit, with the design of defrauding them of their property. The defendants below offered evidence tending to disprove all these allegations. I have no right to intimate any opinion on the credibility of the testimony, nor have I the slightest intention of doing so. It is well settled that malicious abuse of the process of the law will subject the person perpetrating the abuse to an action for damages. Grainger vs. Hill, 4 Bingham’s New Cases, 212. In such cases the inquiry is not whether the suit which the process commenced has been determined or not, or, whether it was founded on reasonable and probable cause, but whether the process has been used to effect an unlawful object. Many cases may be found which illustrate this principle. • To obstruct by fraudulent means the administration of justice is a grievous wrong, which gives a right of action to those who sustain damage from it. The law does not permit the perversion of its process from its legitimate ends. It has been held that the vexatious suing out of a second capias, pending a former writ; the levying execution for double the amount of the debt ; the arrest on a ca. sa. for more than is due, are actionable abuses of process. These are merely instances of this kind of tortious con duct. In Wanzer, et al. vs. Bright, 52 Ill., 35, a debtor was by false statements decoyed within the jurisdiction of a Court, and there arrested in a civil action; although the debt was justly due, the fraudulent means used were held to entitle the debtor to exemplary damages. There have been cases where judgments have been obtained by this kind of abuse, and it has been held that they did not establish a reasonable and probable cause of action. In Burt vs. Place, 4 Wendell, 591, judgment had been obtained by Place against Burt before a justice of the peace. Burt brought an action against Place, and proved that he had good defences in the suits before the justice, but that he was prevented from making themj because Place had maliciously and vexatiously caused him to be arrested and detained in custody until the judgments were rendered, and that the imprisonment was for the very purpose of preventing defences to these suits. The Court held that Place’s conduct was an iniquitous abuse of the process of the law to accomplish an “illegal purpose ;” that the evidence showed “a case of flagrant oppression” and that there was no probable cause for the suits before the justice of the peace ; and that Burt was entitled to vindictive damages. In Spring & Stepp vs. Besore, 12 B. Monroe, 551, the Court of Appeals of Kentucky say that a party against whom a judgment or decree has been rendered may counteract its effect and show that it was rendered without probable cause, if he can show that it was unfairly obtained and was the result of acts of fraud, malice, and oppression on the part of the adverse party, which had the effect, and were designed to have the effect of depriving him of the necessary means of defeating the suit, and obtaining a decision in his favor. The same doctrine in effect is held in Payson vs. Caswell, 22 Me., 212. These cases are cited with approval by the Supreme Court of the United States hi Crescent Live Stock Co. vs. Butchers’ Union, 120 United States, 150-151.

(Decided 17th June, 1891.)

If the plaintiffs had brought a special action on the case, and averred the fraudulent conduct of the defendants, which they allege in this suit, and that they were thereby prevented from establishing a good defence to the action of replevin, as they would otherwise have done, and had maintained their averments to the satisfaction of the jury, they would have been entitled to vindictive damages; but they cannot recover such damages under the pleadings in this case. My opinion on the questions presented by the prayers is sufficiently shown by what I have said. I think that there ought to be a new trial, and that the plaintiffs have a right to amend the pleadings as they may be advised.

Judgment reversed, and new trial ordered.