57 Md. 465 | Md. | 1882
Lead Opinion
delivered the opinion of the Court.
The bill in this case was filed by the appellee against the appellants, for an injunction to perpetually restrain injury to the complainant’s property, brought about as alleged, by the manufacturing of vitriol and sulphuric acid in a factory conducted and operated by the defendants upon premises adjoining those of the complainant. Separate demurrers were filed by each of the defendants, mainly upon the ground that the bill was multifarious, but the Court passed an order overruling the demurrers and requiring the defendants to answer on or before the first day of the succeeding term. From this order a separate appeal has been taken by each defendant, and there is a motion to dismiss the same upon the ground that no appeal lies from such an order.
By the law, regulating appeals from Courts of equity, {Code, Art. 5, sec. 20,) an appeal is allowed “from any■
In Alexander’s Ch. Prac., 183, the learned author, in speaking of the various decisions under the Act of 1818, by which appeals were confined to “ decretal orders,” as not easily reconeileable, refers to the case of Danels vs. Taggart, 1 G. & J., 311, in which it was adjudged that an appeal would not lie from an order overruling a plea, but says that in Wolf vs. Wolf, 2 H. & G., 382, “it had been previously held that an appeal might be taken from an order overruling a demurrer.” Afterwards by the Act of 1830, ch. 185, the phraseology of the law was changed, and it was made to read as it now stands in sec. 20, Art. 5 of the Code. Since the passage of that Act numerous appeals from orders overruling demurrers have been entertained by this Court. In Young vs. Lyons, 8 Gill, 162, and in Williams vs. West, 2 Md., 174, no question as to the right of appeal was made, though the latter was argued by Mr. Alexander for the appellees. In Maddox & Aur vs. White, 4 Md., 12, there was an appeal from an order granting an injunction, and also from an order overruling a demurrer to the bill, and here Mr. Alexander, for the appellee, made the point that no appeal would lie from the latter order, and said that though an appeal from such an order was entertained in Wolf vs. Wolf, yet the question was not raised in the case, and that in the subsequent case of Danels vs. Taggart, it was upon consideration, expressly adjudged that an appeal would not lie from an order overruling a plea, which he insisted, was in principle, the same, with reference to the right of appeal, as an order overruling a demurrei-. The
In view of what is said in the case of Dittman vs. Repp, 50 Md., 516, and in the authorities there referred to and adopted, wre think it very clear that the averments in this bill, in regard to the nuisance and injury complained of, are quite sufficient to warrant the granting of relief by injunction. The objection, however, mainly relied on is, that of multifariousness. The bill alleges that the “ said factory is conducted, controlled and operated by one Thomas G. Chappell, and by The Chappell Chemical and Fertilizer Company," and after averring the injury to the complainant’s property, resulting from the business thus conducted by the defendants, prays “that they may upon tlieir several and respective corporal oaths answer the premises, and that they may set forth and discover whether they or one of them, (and if one, which one,) do not conduct, control and operate a factory at the place hereinbefore mentioned, wherein vitriol, sulphuric acid, or sulphurous acid, or some of these products are made, and that they may be perpetually enjoined, restrained and prohibited from keeping up and maintaining the aforesaid factory, and from making vitriol, sulphuric and sulphurous acids, and other noxious and unwholesome products in the place where the said factory is situated, and that your orator may have such other and further relief as his case may require.”
Row the argument is, that the whole bill is to be taken together, that the discovery must be assumed to be applicable to the case intended to be made for relief, and when therefore the bill calls upon the defendants to disclose, “whether they or one of them, (and if one, which one,) do not conduct,” or operate the factory, it is plain that it contemplates a case where the wrong is done by one of the
Order affirmed, and cause remanded.
Dissenting Opinion
filed the following dissenting opinion, as to the right of appeal:
I cannot agree in the determination that this appeal should he entertained by this Court. It is taken from an order overruling demurrers to the bill, and directing the defendants to answer. It would seem to he too plain for argument, that this order is not a final decree, and it is
It has been repeatedly held by this Court, that the right of appeal from Courts of equity is a statutory right, and does not exist except where expressly given. Dillon vs. Ins. Co., 44 Md., 394 ; Heath & Lovejoy vs. Irelan, 14 Md., 388; Wheeler vs. Stone, 4 Gill, 39 ; Thompson vs. McKim, 6 H. & J., 302.
No appeal' lies from any interlocutory order which does not definitively and finally settle some contested right involved in the litigation, as between the parties. 14 Md., 388.
Such being the settled principle, what right involved in the litigation is finally determined by the order overruling the demurrers and requiring the defendants.to answer?.
It is the settled practice, if the demurrer to the hill be overruled, the defendant must be required to answer the hill by a certain day ; and he is then at liberty to plead or answer ; and by his answer, he may insist on the matters relied on by his demurrer. If he elects to rely úpon his demurrer, and refuses to answer, the Court may then take so much of the bill as is well pleaded, covered by the demurrer, as confessed, and thereupon proceed to decree. Alex. Ch. Pr., 58, 59; Collateral Security Bank vs. Fowler, 42 Md., 393, 402. But, unless an opportunity he given to answer, after overruling the demurrer, no final decree can he entered ; and the entry of such final decree, without the opportunity to answer, would he plain and' palpable error, .for which the ' decree would he reversed. Trego vs. Skinner, 42 Md., 426, 433 ; Smith vs. Ballantyne, 10 Paige, 101.
The order overruling the demurrer, therefore, simply determines that the bill is proper to he answered by the
This is made manifest by looking to the nature and purposes of the demurrer.
At law, the demurrer imports, that the objecting party will net proceed with the pleading, because no sufficient statement has been made by the adverse party; but submits to the judgment of the Court, whether he is bound to answer. In equity, the demurrer has precisely the same import. It demands the judgment of the Court, whether the defendant shall be compelled to answer the complainant’s bill, or that particular part of it to which the demurrer applies. Mitf. Eq. PI., 106, 107, 108; Sto. Eq. PI., secs. 436, 441. And if the demurrer be overruled, the simple judgment of the Court is, that the defendant be required to answer ; and this falls exactly within the definition of an interlocutory order or decree, as given in Seaton on Decrees, p. 2. The order therefore, overruling the demurrer, determines no right, but only a mere question of pleading.
In this case, the order overruling the demurrers required the defendants to answer, according to the established practice; but instead of answering, or waiting for a final decree in default of answer, they have appealed to this Court.
Now, in actions at law, that no appeal will lie from the interlocutory judgment overruling a demurrer to thé declaration or other pleading, but only from the final judgment, is too well settled to admit of a question; and this because such judgment neither settles nor concludes any right between the parties. It determines a mere matter of pleading. Wheeler vs. The State, 7 Gill, 33; Welsh vs. Davis, Ib., 364, 366; Boteler & Belt vs. State, use of Chew, 7 G. & J., 109 ; Gittings vs. The State, 33 Md., 461;
But has not the question been substantially, and to all reasonable intents and purposes, decided by this Court, in the case of Danels vs. Taggart, 1 G. & J., 311 ? In that case, to a bill for an account, the defendant pleaded in bar an account stated, and balance due thereon to-the defendant. To that plea the plaintiff demurred, and the plea was overruled, and the defendant was ordered to answer' the bill, as in this case. And upon an appeal from that order by the defendant, it was held, after full consideration, that the appeal would not lie. That the order determined no question of right between the parties, hut only decided a question of pleading. In reason and principle I can perceive no substantial distinction whatever between that case and the present.
To show how this question has been considered by other Courts of high authority, I will take occasion to refer to a few cases.
In the case of Forbes vs. Tuckerman, 115 Mass., 115, the Court had occasion to consider the nature and effect of an order overruling a demurrer to a bill in equity. And in holding the order to be a mere interlocutory order, having in its nature nothing final, Chief Justice Gray, speaking for the Court, said that no decree is final, which leaves anything open to be decided by the. Court, and does not. determine the whole case. “ Even an order allowing or sustaining a demurrer is not a final decree, unless, in terms or effect, it dismisses the bill and puts the case out of Coirrt;” and he cites 6 How., 103; 3 Paige, 505; and
In the case of De Armas vs. United States, 6 How., 103, on a question of the right of appeal, where the statute had provided, that in all cases the party against whom the decree might he finally given, should he entitled to an appeal, it was held, that an order sustaining a demurrer to the bill or petition, because it was multifarious, and because the names of proper parties were not set forth, was not, in any sense, a final judgment or decree from which an appeal would lie, inasmuch as the bill had not been dismissed, but was still remaining in Court. And the Supreme Court, in dismissing the appeal, speaking by Chief Justice Tajtey, said: “Nothing is decided but a question of pleading, and a question as to proper parties. The petition appears to be still pending in the District Court; and the objections upon which the Court decided against the petitioners might be removed, if the appellants desired it, by an application to the Court for leave to amend. But if the petitioners did not move for leave to amend, and preferred taking the opinion of this Court upon the questions decided against them in the District Court, then, under the opinion given by that Court upon the demurrer, it should have proceeded to pass a final decree dismissing the hill. An appeal from that decree
And so in this case; if the defendants had determined to stand upon the demurrers, they should, by refusing to answer, have allowed the bill .to be taken as confessed, and a final decree to be passed thereon, and from that taken the appeal, and not from the order simply overruling the demurrers.
Our statute was intended to regulate and restrict the right of appeal, with a view "of preventing unnecessary delays and the accumulation of costs. Hence the right of appeal is confined to decrees that are final, or orders in the nature of final decrees. No order, therefore, that has not the nature and effect of finality in it, in respect to the subject-matter of the litigation, can be the subject of an appeal, except in those cases expressly provided for by the statute. Otherwise, it would be difficult, if not impracticable, ever to bring a much controverted litigation to an end. Eor if an appeal will lie from an order overruling a demurrer to the entire bill, it must, for the same reason, lie from an order overruling a demurrer to parts of the bill; and it is not difficult to perceive how such modes of defence may be resorted to for the purposes of delay, and to the great injury and annoyance of the party complaining. Affirming the order on the present appeal, the case is remanded, and if the defendants should fail or decline to answer, a final decree maybe passed; but from that final decree another appeal may be taken by the defendants; and thus" the litigation may be, if the parties are so inclined, most vexatiously protracted. This was never the design of the statute. *
It is true, there have been cases brought into this Court on appeals from orders like the present; but the question of the right to maintain such appeals has never, before the decision in this case, been adjudicated. The appeals