Darby v. Montgomery County Nat. Bank

On Rehearing.

In June, 1931, Montgomery County National Bank of Rockville, Md., brought action against John Gardner Darby and Bessie D. Darby (liis wife) to recover $12,324 claimed to be due on their promissory note held by the bank. Darby made no defense, but bis wife (appellant), in August, 1931, filed her separate plea supported by affidavit- in which she alleged she never signed or promised to pay the note, either jointly with any other person or severally, or in any way became a- party to it. There was a stipulation waiving a jury. On the trial, the bank called John G. Darby as its first witness, and the note sued on was handed to him, and he was asked to say whether or not the signature thereon was that of his wife, but be refused to answer the question on the ground that his answer might tend to incriminate Mm, and likewise refused to answer when asked if he had presented the note to the plaintiff bank as bearing the genuine signatures of himself and his wife. The note was then introduced in evidence!, her counsel not objecting, and Mr. Hunter, president of the bank, testified that he knew John G. Darby, who had been an assistant cashier in the bank for many years; that the note had been handed to him as president of the bank by Darby as being the genuine note of himself and Ms wife; that the note was for an amount aggregating the principal of several notes purporting to have been made by the same parties. The witness, however, did not know the genuine signature of Mrs. Darby, and was unable to testify that the signature on the note was her signature, but did identify a letter received by him, admittedly written by Mrs. Darby, as follows;

“Please send me a statement of our indebtedness to your bank, together with all information as to the original dates of notes, renewals, curtailments, collateral, etc. Also please advise me what action is absolutely necessary at this time.
“The next time you are in Washington, I would very much appreciate your calling to see me.
“Thanking you in advance for being explicit in this matter, and for a prompt reply, etc.”

This concluded the evidence for the bank, and no motion for judgment was made on behalf of Mrs. Darby; and when called as a witness in her own behalf she testified that-the note did not bear her genuine signature; that she had never signed it, or any other note to the plaintiff bank, nor had she ever authorized anybody to sign any note or notes in her behalf. She was asked to explain the letter 'quoted above, and said that she used the expression “our indebtedness” because she was one of, the parties to the suit then being brought; that when she wrote the letter she had knowledge of the suit, and that the writing of the letter followed immediately after her husband told her he had been relieved of his duties at the bank; that she signed the affidavit of defense on August 3', some two months after the institution of the suit; and that up until that time she had not. dis- ' closed to the bank the fact that her signature on the note was forged. Thereupon the ease was submitted without argument, and the following occurred:

“The Court: I find for the plaintiff; in the sum of the amount of this note with interest from date.
“Counsel for Mrs. Darby: We note an appeal, of course.
“The Court: I believe the proper practice is to file a motion for a new trial.
“Counsel: Under the circumstances I thought it was perhaps useless.
“The Court: Then you want judgment to be entered forthwith and appeal noted.
“Counsel: Yes.”

Giving effect to all that was introduced in behalf of the bank to show liability on the part of Mrs. Darby, we think there was a complete failure of proof. The bank went into the trial bearing the burden of establishing the allegation that the note in suit was signed by Mrs. Darby or by someone authorized by her to sign it for her. The execution of the note was denied by plea and affidavit, and in such circumstances the universal rule is that the plaintiff has the burden of proving execution by the defendant of the instrument sued on (Sears v. Moore, 171 Mass. 514, 50 N. E. 1027; Austen v. Marzolf, *184307 Pa. 232, 161 A. 72; In re Estate of Burke v. Sullivan, 247 Ill. App. 233; Engel v. Schloss, 134 Md. 72, 106 A. 169; Dever v. Silver, 135 Md. 355, 109 A. 67; Roth v. Knights of Joseph Bldg. & Loan Ass’n, 66 Pa. Super. Ct. 413; Conner v. Henry, 201 Iowa, 253, 207 N. W. 119; Fudge v. Marquell, 164 Ind. 447, 72 N. E. 565, 73 N. E. 895; Broadway Bank of Kansas City v. Stroud (Mo. App.) 51 S.W.(2d) 555; Civic Agency v. Kuhn (La. App.) 145 So. 564. The only thing that may be dignified by the name of evidence offered on behalf of the bank was the letter written by Mrs. Darby to its president requesting a statement of “our indebtedness,” which she admitted referred to the indebtedness of her husband and herself, and her explanation was that she wrote this after she had been informed by her husband that he had been relieved of his duties at the bank, and it was stated at the bar quite frankly by counsel for both parties that the cause of his dismissal was a defalcation, for which at the time of the trial he was under indictment and which at the time of the hearing on appeal he had pleaded guilty to and for which he was then confined in prison. As ve have seen, there was no evidence to prove, or tend to prove, that Mrs. Darby-signed the note or authorized her husband to sign it for her, and there was, on the other hand, her testimony under oath that she did not, sign it, and the testimony of her husband, when called as a witness by the bank, that he could not testify to the truth in relation to the signature without incriminating himself.

In these circumstances, judgment below should have gone for appellant, and we would have felt impelled to reverse on -the ground the decision was clearly wrong except for the rule that where there is in the record no special finding, no motion for judgment, and no exceptions, there is nothing an appellate court can review, and that was the ground of our former decision.

Appellant thereafter filed a petition for rehearing, which we granted. She urged on this rehearing that under the act of Feb. 26, ,1919, 28 USCA § 391 (amending section 269 of the Judicial Code), we should proceed to a decision on the merits notwithstanding the failure of her counsel to move for judgment and upon denial of the motion, to except. The amendment we have referred to is as follows: “On the hearing of any appeal, certiorari, .writ of error, or motion for a new trial, in any ease, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.”

In Muentzer v. Los Angeles Bank, 3 F. (2d) 222, 223, the Seventh Circuit Court of Appeals held in a common-law action where a jury was waived and in which there were neither findings nor request for findings, nor motions made by either party at the close of the testimony, that the amendment could be invoked to save the litigant from the consequences of this oversight of counsel. But a contrary view'has consistently prevailed in all of the other circuits where the question has arisen. Time after time it has been held that the purpose of the amendment was not to enlarge the review powers of the courts or to dispense with necessary motions and exceptions, but was solely aimed at preventing reversals for minor errors. See Storgard v. France, etc. (C. C. A.) 263 F. 545; Rosen v. U. S. (C. C. A.) 271 F. 651, 653; Feinberg v. U. S. (C. C. A.) 2 F.(2d) 955; Vance v. Chapman (C. C. A.) 23 F.(2d) 914; De Jianne v. U. S. (C. C. A.) 282 F. 737; Robilio v. U. S. (C. C. A.) 291 F. 975, 980.

In Brown v. Carver (C. C. A.) 45 F.(2d) 673, Judge L. Hand aptly remarks that the result makes form a fetish but holds that the purpose of the amendment was to contract and not enlarge the powers of review and this, he says, is confirmed by the report of the House committee .on the adoption of the amendment.

Our own former decisions are in accord with those in the majority of the circuits. See Standard Oil Co. v. Allen, 50 App. D. C. 87, 267 F. 645; Carson v. Jackson, 52 App. D. C. 51, 281 F. 411.

The Supreme Court has noticed the amendment in Liberty Oil Co. v. Condon Nat. Bank, 260 U. S. 235, 245, 43 S. Ct. 118, 67 L. Ed. 232, and in Camp v. Gress, 250 U. S. 308, 39 S. Ct. 478, 63 L. Ed. 997. In neither was there occasion to construe the section with relation to its applicability in a case of failure to obtain special findings, or move for judgment, or for failure to except. In Ohl & Co. v. Smith Iron Works, 288 U. S. 170, 177, 53 S. Ct. 340; 77 L. Ed. 681, there was a reference to the amendment as covering a defect growing out of the initialing by the judge of the bills of exceptions. But in Fleischmann Const. Co. v. U. S., 270 U. S. 349, 357, 46 S. Ct. 284, 70 L. Ed. 624, and in Eastman Kodak Co. v. Gray, 54 S. Ct. 722, 724, 78 L. Ed. 1291 (decided May 21, 1934), the Supreme Court said in unmistakable language *185that the general finding of the trial court is conclusive upon all matters of fact, and prevents any inquiry into the conclusions of law embodied therein, except insofar as the rulings during the progress of tho trial were ex-eepted to and duly preserved by bill of exceptions. In the last named caso the circumstances were in all respects like those here, that is to say, there was a waiver of jury, evidenee, exhibits, a decision by the lower court, a signed bill of exceptions (but no exceptions in the record to justify its signing); no speeial findings, and no ruling on any proposition of law. In that case, but not in this, there was at the conclusion of the trial a motion for judgment. But this, the Supreme Court held, was not sufficient to present any question for review unless accompanied by adequate exceptions Whatever, therefore, may be our view on the merits of the case, we regard ourselves bound by these decisions to hold that m a civil case, “to obtain a review by an appellate court of! the conclusions of law a party must either obtain from the trial corn-t special findings which raise the legal propositions, or present the propositions of law to the court and obtain a ruling on thorn,” and to bring up a question in relation thereto, other than rulmgs on the pleading» or the sufficiency of the complaint, an exception is obligatory. In this case there were, from hegmnmg to end of the trial, no special findmgs, no peremptory motions, and no exeeptions to the general finding or decision of the court Hence there was nothing on which a bill of exceptions could be based and therefore nothing we can consider That the result is one of serious hardship to appellant may not he denied, nor can we lose sight of tho fact that our decision confirms a judgment against her which, m the light or the facts shown m the_certificate of evidence, the bank was not entitled to have, and if we felt we were at liberty to do so, we should unhesitatingly order a new trial (in saying tins wo are not unmindful of Mr. otory s admomtion that “infinite misenicE has been produced by the facility of courts of justice m overlooking errors of form ) But m view of tno emphatic and consistent adherence by the Supreme Court to the rule that a general finding of the trial court is, m the absence of motion for judgment and exceptions, conclusive upon all matters of fact, we feel we must auhere to our former decision.

No costs will be allowed on this appeal, and on proper motion onr mandate will be stayed pending application to the Supreme Court for a review" of our decision.

ROBB, Associate Justice, concurs in the result,