
    EDWIN M. WILMER vs. SUSAN E. PLACIDE.
    
      Depositions — Objections to Testimony — Res Adjudicata, — Taking Gase from Jury.
    
    A rule of court that no demurrer, motion or other paper, which may require a hearing by the court in advance of trial of the whole ease on the merits, shall be filed until a copy shall have been served on the opposing party, has no application to an exception to and motion ne recipiatur in reference to a deposition, if based, not on the execution or return of the commission, but on the inadmissibility of the evidence taken under the commission.
    Since Code, Art. 35, Sec. 21, provides for the use of the deposition of a resident witness only when the witness is dead or unable to attend, it may be presumed, in the absence of anything in the record to show such necessity for the use of the deposition of such a witness, that the action of the lower court in excluding it was based on the lack of evidence of such necessity.
    After the refusal, by the Court of Appeals, as well as by the lower court, to strike out a decree as having been obtained by perjured evidence and fraud, the unsuccessful party cannot bring an action at law against the successful party for damages on account of the asserted perjury and fraud.
    The defense of res adjudicata can be relied on either by special plea or under the general issue plea.
    An objection by defendant to the introduction of evidence cannot be regarded as equivalent to a demurrer, for the purpose of enabling the court to pass on the sufficiency of the declaration, or of the different counts thereof.
    It is error for the court to refuse to allow the plaintiff to introduce any testimony and to direct a verdict for defendant, even though some of the counts of the declaration are manifestly bad and the others are questionable.
    
      Decided November 17th, 1920.
    
    
      Appeal from the Superior Court of Baltimore City ('Stump, L).
    The cause was argued before Boyd, C. J., Briscoe, Thomas, PIattison, Stockbridge, Adkins, and Oeeutt, LT.
    
      David Ash, for the appellant.
    IT. Ilerdman S'chwatha and Harry 21. Benzinger, for the' appellee.
   Boyd., C. J.,

delivered the opinion of the Court.

This record presents some peculiar and unusual conditions. There are four bills of exception in the record, the first three presenting rulings of the lower Court in reference to testimony, and the fourth was to an instruction directing the jury to render a verdict for the defendant. The first exception was taken to the action of the court in overruling the plaintiff’s objection to the defendant’s exception to and motion ne recipiatw' of the deposition of Elijah J. Bond taken de bene esse. That objection was based on certain rules of the Superior Court of Baltimore City but, as we understand the record, the plaintiff’s attorney is manifestly under a misapprehension of the application of the rules. Rule 3-A begins by saying, “No demurrer, motion or other paper iviiich may require a hearing by the court in advance of trial of the whole case on the merits shall be filed until after a copy thereof shall have been served upon the opposing party or parties or counsel of record, or otherwise in accordance with the provisions of Rule 8,” etc. What we have italicised is a sufficient answer to the plaintiff’s contention. No exception to the execution and return of the commission was filed, but the objection to the testimony of Mr. Bond was that it was not admissible. That did not require a hearing in advance o'f the trial of the whole case on the merits, but the time to object to the substance of the evidence taken under a commission is at the trial. The recent case of Woodward v. Tyng, 123 Md. 98, 116, sufficiently disposes of that exception to avoid the necessity of citing other authorities.

The second exception was to “sustaining said exceptions to said testimony and in granting and sustaining said motion ne recipiatur and in refusing to receive the testimony of said Elijah J. Bond or any part thereof and in refusing to permit said deposition or any part, thereof to be placed in evidence or read to, the jury.” It might be sufficient to say that there is nothing in the record to show the necessity for the use of the deposition de bene esse of Mr. Bond, Sec. 21 of Art. 35 provides for taking the deposition of any witness “to be used as testimony on the trial of such action, in case only of the death of such witness, or on proof to the satisfaction, of the court of the inability of the party to procure the attendance of such witness at the time of trial and the probable continuance of said inability until and at the next term, before the court shall permit such testimony to be used”. We do not find in the record any statement that the witness was dead, or proof of his, inability to attend. In Consolidated Ry Co. v. O’Dea, 91 Md. 506, this section (which was sec. 19 of the Codo of 1888) was before the Court. Chief Judge MeSherry on pages 512-513 said of it: “Primarily the statute contemplates that the resident witness shall appear in person, but as contingencies might occur where this would not be possible, the Legislature provided by Sec. 19 for the production of his testimony by deposition if the personal attendance of the witness could not be procured in a reasonable time. The deposition thus taken can only be used should the witness continue unable to be present.” As the lower Court is presumed to, have acted correctly, in the absence of something to show the contrary, we might assTime that the plaintiff did not satisfy it that the deposition could properly be used. It is true that this is not given as one of the objections to its admission, but the motion after referring to several other grounds adds, “And for other reasons to be stated.”

But without relying on that, was the court right in refusing to permit the deposition to be read in evidence? A good deal of Mr. Bond’s evidence was wholly irrelevant, and the only part of it that could under the plaintiff’s claim be said to be pertinent was that in reference to. the deeds for and the mortgage on the Madison Avenue property. He testified that he left Baltimore in 1892 and did not come back permanently until 1913, that he only visited Baltimore in that interval three or four times, but there is not the slightest suggestion that he could not have been procured at the hearing by Wilmer, if h'is evidence was deemed important or desirable. There may be some question about what property is referred to in the other counts, but there can be none as to the fifth and sixth counts, as they refer to No. 1300 Madison Avenue. There are few, if any, instances in the reports of decisions of courts where one property has been more in litigation than that. There was every opportunity, as shown by the records and decisions of this court, for this appellant to present every phase of the cases that was permissible and, in some of them, some points were pressed which had no foundation in law or equity. Speaking then of the Madison Avenue property, this suit is an attempt to continue, or to speak more accurately, to re-open litigation in a way that has no> justification under the decisions of this court, whatever may be the rule in any other jurisdiction.

The fifth count alleges that the defendant “did by fraud, fraudulent conspiracy and perjury, dispossess and deprive the plaintiff of his rights in said property, and in furtherance of said object, wrongfully and wilfully, corruptly and fraudulently, repudiate her certain deed of said property to her sister, theretofore duly executed, acknowledged, delivered and recorded, and, in order to perfect said fraud, did wilfully on false testimony and otherwise commit and cause to be committed perjury in a certain suit and suits pending between tbe plaintiff and defendant in tbe several courts of Baltimore City”. The sixth count alleges that the defendant executed a mortgage on said property, which became the property of the plaintiff, “and that by false testimony, perjury, fraud and conspiracy, said Susan E. Placide did, by abuse of the process of the courts of Baltimore City, cause the plaintiff to lose his property in said mortgage, and to be otherwise injured and damaged”.

In the case of Wilmer v. Placide, 118 Md. 305, Susan E. Placide filed a bill against Edwin M. Wilmer, alleging that she was the owner of No. 1300 Madison Avenue, which was conveyed to her by Edwin M. Wilmer and George W. Lindsay, Trustees, by deed dated June 16, 1887, that on the third of November, 1890, she gave to her sister1 Alice B. Wilmer, who was the wife of Edwin M. Wilmer, a mortgage, which was assigned by her to the Mercantile Trust & Deposit Company, which assigned it to Edwin M. Wilmer on the 28 th of December, 1897, and which the bill alleged had been fully paid. The bill also alleged that Wilmer was largely indebted to the plaintiff for money collected by him for her and for money entrusted to him to be paid upon the mortgage, which he failed to apply thereto, and wrongfully took an assignment of the mortgage to himself, that after the death of Alice B. Wilmer the plaintiff took charge and control of and cared for her three infant children and in 1897 she allowed said Wilmer to bring to the Madison Avenue home, where he, his children and the plaintiff then lived, his two sisters and two nieces, and permitted them to occupy the greater part of her house under an agreement that he would pay all expenses, taxes, repairs and interest on the mortgage, etc.

Wilmer in his answer denied the plaintiff’s ownership' of the Madison Avenue property, and alleged that, after the conveyance to the plaintiff by the trustees, she conveyed it away, denied the alleged indebtedness and the agreement as to the occupancy of the house, and that the plaintiff had paid any part of the mortgage excepting a small amount for which, credit was given at the time of the assignment to him. On December 28th, 1910, Miss Placide filed a bill against Edwin M. Wilmer, Henry Placide Wilmer and E. Placide Wilmer, sons of Edwin M., and H. V, Morse, husband of a deceased daughter of Edwin M. Wilmer, in which she alleged that Edwin M. had left for record in the clerk’s office a deed dated the 28th of July, 1887, by which she was said to have conveyed to' her sister, Alice B. Wilmer, the house and lot known as No. 1300 Madison Avenue. She denied that she .ever signed such a deed, and alleged-that she never heard of it until at or about the time it was put on. record, which was on December 8th, 1910. Alice B. Wilinor died intestate on June 29th, 1891, and Edwin M. claimed a life estate in said property as the husband of his deceased. wife. A great mass of testimony was taken and there' were numerous exceptions filed by Wilmer to the rulings of the court upon the admission oar rejection of testimony.

■The' two cases were consolidated and there was a decree passed which set aside the alleged deed, and the papers' in the case were referred to the auditor to state an account as therein directed. Both sides appealed to this court. It will be noticed that the mortgage was given over three year’s after the alleged deed was made, which deed was not recorded for more than twenty-three years after its date — while the first suit referred to above was pending.. The two surviving’ children of Edwin M. Wilmer filed an answer* admitting the allegations of the bill and said they never 'heard of the alleged deed until shortly before it was recorded, and that they were willing and anxious that it be declared void and of no effect. The testimony showed that Edwin M. Wilmer had drawn the petition to the court and’ the order thereon for his wife, who was trustee, to loan the money on the mortgage, and that he had -drawn a number of papers which showed that ■the property belonged to Miss Placide. :

Miss Plaeide testified that she had frequently signed papers at ’Wllmer’s instance without understanding what was in them, owing to the confidence she then had in him. She denied that she had gone before the justice of the peace before whom the deed to Mrs. Wilmer purported to have been acknowledged, while Mr. Bond, in his deposition, said he was present when she acknowledged it but, as will be seen in the opinion in 138 Md., the conclusion reached by the court was “almost exclusively upon the conceded testimony in the case”. In Wilmer v. Placide, 121 Md., 339, there "was an attempt to have the decree passed in 118 Md. vacated and set aside. The grounds relied on were fraud and newly discovered evidence, and the fraud was alleged to consist of perjured evidence. As to the latter the court said it fell directly under the rule laid down in Maryland Steel Co. v. Marney, 91 Md. 360. The authorities there cited by Judge Stookbridge showed too clearly the opinion of this Court on the subject to require further citations or discussion of the question. While the case reported in 127 Md. was an effort to set aside and vacate a decree, the principle involved in this case is the same. Indeed a court of equity would be more anxious to set aside a decree obtained by perjured testimony than a court of law could be to sustain such a suit as this. There must be an end to litigation somewhere, and if the litigant who loses his case is to be permitted to sue the opposite party for alleged perjury and gains that case, ■what is to prevent that party from suing him on the same ground, and thus indefinitely continue the litigation ?

In this State the defense of res adjudícala can be relied on either by special plea or under the general issue plea. Impervious Products Co. v. Gray, 127 Md. 64, where some of the earlier causes are cited. As not only the lower court but this court had decided the questions involved in reference to the ownership of No. 1300 Madison Avenue, and had refused to strike out the decree on the alleged ground that it had been obtained by perjured evidence and fraud, it would be a reflection upon the administration of justice to hold that, notwithstanding the records of this court show the facts and circumstances connected with the case, and its decisions have disposed of the questions, either it, or a court subject to be reviewed by it, is required to entertain and pass on the same questions in another proceeeding between the same parties. There could be no possible doubt, that this court would be authorized to consider its own records and decisions on the subject, and hence if there is any question about the right of the lower court to do so, this court would hold it not to be reversible error, even if it be conceded that there was technical error, in rejecting evidence which must ultimately be rejected.

There is nothing whatever in the evidence of Mr. Bond which could reflect upon the- allegation in the sixth count as to the abuse of the process of the courts of Baltimore City, quoted above. Without quoting from it, what a malicious abuse of legal process consists of is shown by Judge McSherry in Bartlett v. Christhilf, 69 Md. 219, and there is nothing in the records of this Court in the cases in reference to the Madison Avenue property which could possibly sustain or admit of a charge of abuse of legal process. So without further discussing the question, we are of the opinion that the deposition of Mr. Bond was properly excluded.

Edwin M. Wilmer was called and, after stating where he resided and that, he was the plaintiff, counsel for defendant objected to any testimony on the part of the plaintiff, contending that the matters contained in the declaration had already been -passed upon by this court adversely. Over the protest of the plaintiff, the court sustained the objection of defendant and refused to permit the plaintiff to introduce any further testimony in the case. That ruling constitutes the third exception. Then this appears in the record: “The court does not think it is proper and hence will not permit any further testimony to be offered on the plaintiff’s part, and you are instructed by the court, when the clerk calls upon you for your verdict in this case, to render it for the defendant. The court has already given its opinion and the case has been discussed from the legal sido on a motion that was made during’ your recess on the part of the .defendant to exclude the written testimony offered in the case, so that the court being of opinion that the questions involved in substance in this case have already been passed upon in such a way as not to justify as a matter of law any further proceedings in this case, you will when called upon render your verdict for the defendant. . And the jury thereupon rendered a verdict for the defendant.” That action of the court is embraced in the fourth exception, and the two exceptions will be considered together. The declaration contains seven counts, only two of which (fifth and sixth) in terms refer to the hiadison Avenue property. It is impossible for us to know what evidence the plaintiff proposed to introduce, or to what property he referred. There was no demurrer filed to the declaration or to any of the counts in it. Although, in passing on the adffiissibility of evidence, the court is required to examine the pleadings in order to ascertain whether the evidence is admissible, as decided in Leopard v. C. & O. Canal Co., 1 Gill 222; Marshall v. Haney, 9 Gill 251; and B. & O. R. R. Co. v. State, use Woodward, 41 Md. 286, there is nothing before us to show what was to be offered by the plaintiff, and wo know of no ease which would authorize us to treat an objection to evidence as equivalent to a demurrer and thereby enable us to pass on the sufficiency of the declaration, or the different counts.

So although some of the counts are manifestly bad, and it may wrell be questioned whether any of them are good under the decisions of this court, we do not feel at liberty to now pass on them and, if we found them all bad, to hold that there is no reversible error in taking the case away from the jury, although it is to be much regretted that we feel compelled to do anything which will continue the litigation between these parties. Such cases as Maryland Steel Co. v. Marney 91 Md. 360, and Wilmer v. Placide, 127 Md. 339, show the position this court has taken when it was sought to obtain relief from a judgment or decree alleged to have been obtained by perjured testimony, and those of McNamee v. Minke, 49 Md. 122; Clements v. Odorless Excavating Apparatus Co., 67 Md. 461; Bartlett v. Christhilf, 69 Md. 219; Supreme Lodge v. Unverzagt, 76 Md. 104; Rieger & Co. v. Knight, 128 Md. 189, and Wegefarth v. Wiessner, 134 Md. 555, show how suits for malicious prosecution in civil cases, including the alleged abuse of process of courts, are regarded by it, and not encouraged. But as there is nothing in the record to show that the counts other than five and six refer to matters already disposed of by us or even what evidence was intended to be offered, we are forced to the conclusion that the lower court fell into error in excluding all the evidence and directing the jury to return a verdict for the defendant, and we must therefore reverse the judgment and remand the case for a new trial.

Judgment reversed mid new• trial awarded, the appellee to pay the costs.  