Chappell v. Funk, 57 Md. 465

Chappell v. Funk

57 Md. 465 | Md. | 1882

Lead Opinion

Milltcr, J.,

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■ *472final decree, or order in the nature of a final decree,” and it is well settled, that an order of the latter character, to admit of an appeal, must be one which finally settles some disputed right or interest of the parties. Dillon vs. Mutual Ins. Co., 44 Md., 395. In our opinion an order overruling a demurrer to the entire bill, does finally settle (so far as the Court passing it can do so,) a disputed right of the parties. -It is true that demurrers are no favorites of Courts of equity, nor are they often resorted to, but it is the undoubted privilege of a defendant in an equity suit to demur to the bill. By so doing he challenges and denies, either the jurisdiction of the Court, or that the bill, on its face, states any case which the defendant can be lawfully required to answer, or otherwise notice or defend. He says, in fact, to the complainant, you have no right to bring me into a Court of equity upon this case. If the demurrer be sustained, the complainant is out of Court, and it is conceded he can then appeal, for by such action the right to proceed with his case is finally settled against him, and in favor of the defendant. So if the demurrer be overruled, the Court by its order to that effect determines and settles in favor of the complainant and against the defendant, the disputed right of the former to proceed in equity upon the case made by1 his bill, and it seems to us not only convenient, but most important for both parties that such a question should be finally settled in limine, and by appeal if necessary, before the costs and expenses of a long litigation have been incurred. An order settling either way a right so important as this does not, in our judgment, fall within the class of mere interlocutory orders which can only be reviewed upon appeal from the final decree in the cause. Nor. do we fear or anticipate that by allowing appeals from such orders, the privilege will be abused to the prejudice of suitors or the delay of justice. It has not been so in the past, though the appeal has been enter*473tainecl and acted on by tbe appellate Court, in every case where one has been* taken from such an order. And even if we were inclined to put a different construction upon the statute and to deny the right of appeal in such cases we should find ourselves embarrassed if not precluded from so deciding, by the strong and numerous precedents in favor of the right, which we shall now briefly notice.

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 *474Court in disposing of the case, deemed it unnecessary to notice the question as to the regularity of the appeal, because they were of opinion the appellee was entitled to an affirmance on the merits, but they entertained the appeal and affirmed both orders. After this come the cases of Broadbent, et al. vs. The State, 7 Md., 416, and Griffin & Lee vs. Merrill, 10 Md., 364. In the first the question was not raised in argument, but in the second, counsel for the appellants contended that an appeal would lie, and Mr. Alexander for the appellee permitted the point to go unanswered. This was a very plain case in which the attention of the Court was again expressly directed by counsel to the right of appeal from such an order, and the Court not only entertained the appeal, hut reversed the order and dismissed the bill. This action of the Court, after its attention had been called to the question, falls but little short of an express adjudication that an appeal will lie from such an order. In fact it seems to have been treated on all sides as having settled the law on the subject, for in the subsequent cases of Wilson vs. Wilson, 23 Md., 162; Kunkel vs. Markell, 26 Md., 390 ; Collateral Security Bank vs. Fowler, 42 Md., 393, and Trego vs. Skinner, 42 Md., 426, appeals from precisely similar orders were entertained without further question either by Court or counsel. Now, while it may be conceded that action taken sub silentio in one or two instances would be entitled to very little consideration, yet the effect of a long series of cases such as we have cited cannot be overlooked or disregarded. If these precedents have not definitely settled the right of, appeal in such cases, it is certain we cannot attribute to the expression falling obiter from the Court in the recent case of Mayor, &c. vs. Weatherby, 52 Md., 449, the effect of settling the law to the contrary. In fact so far as the weight of precedent and practice goes it is clearly in favor of the construction we have placed upon the statute, *475and sustains the right to appeal from such orders. The motion to dismiss must therefore be overruled, and we must determine whether the bill is open to the objections presented b}1, the demurrers.

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 *476defendants, and not by both jointly, and where the complainant, notwithstanding his previous allegation of joint control and misconduct by both defendants, confesses that he does not know whether it is not the control or misconduct of one only, and does not know and cannot say which of the two it is, or whether it is either; that taking thus the whole bill together, it presents the casé of a comr plainant, who believes himself injured by one of two parties, but does not know by which, and instead of making up his mind as to the wrong-doer, or suing both if he cannot, endeavors to unite them in an alternative proceeding, under the averment that while they are both guilty, he does not know whether either is, or if either, which; and that it cannot he competent for a complainant- who suspects one of two parties of doing him a wrong, to get over the legal difficulty of an alternative and fishing bill, by first charging the two with a joint wrong, and then requiring them both to discover whether one or the other is or is not guilty, and if yea, which, to the end that the suit may be prosecuted against the one who confesses, and dismissed as to the other. Such is the argument, and it is unquestionably true that the whole bill must be looked at, and the praying and charging parts read together, for the purpose of ascertaining with what view it was framed. Nor, if this bill be such as the appellants’ counsel have designated it, is there any doubt but that it is bad upon demurrer. We do not however regard it as open to such an objection. As we read it, the bill plainly charges that both of the defendants are conducting or carrying on the factory which creates the nuisance, and it asks for an injunction against both of them. It also prays that both of. them may upon their several and respective oaths, answer the premises. If it had stopped here, and the following special interrogatory had not been inserted, it would have been the duty of each of the defendants to answer the charge that he was conducting the factory *477jointly with his co-defendant, fully by denial or admission ; for it is an elementary doctrine of equity pleading, that if a defendant submits to answer, his answer must be full and perfect to all the material allegations of the bill, and he must admit or deny all the facts stated in the hill, with all their material circumstances, without any special interrogatory for that purpose. Story’s Eq. Pl., sec. 852 ; Methodist Church vs. Jaques, 1 Johns. Ch. Rep., 65. In our opinion then, the mere unnecessary insertion of a special interrogatory, proper to he answered, and which the defendants were each hound to answer in answering the charging part of the bill, cannot have the effect to make the hill demurrable. If both admit the charge that they are jointly conducting the factory, it will not be necessary for the complainant to prove it, and if they deny it, then an issue will he made up, and the complainant will have to sustain the charge by proof. If one admits and the other denies participation in the conduct of the business, then it will only be incumbent on the complainant to prove the charge against the party denying it. In no event can the answer be binding upon the complainant. From these views, it follows that the order overruling the demurrers must he affirmed, and the cause remanded.

(Decided 19th January, 1882.)

Order affirmed, and cause remanded.

Dissenting Opinion

Alyiíy, J.,

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 *478equally clear that it cannot, in any proper sense, be taken as “an order in the nature of a final decree;” and unless it can he fairly treated as an order in the nature of a final decree, the right of appeal does not exist. Code, Art. 5, sec. 20.

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 *479defendant; but no final decree is determined upon, and such decree can only be settled and passed after the defendant’s failure to answer, according to the requirement of the Court.

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; *480Dietrich vs. Swartz, 41 Md., 196. That being so, why; should there be a distinction between the interlocutory judgment at law upon overruling the demurrer, and the same character of judgment or order in equity, in respect to the right of appeal, unless such distinction be made by statute? And clearly no such distinction has been made by statute, and, in my judgment, none should be made by decision.

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 *481Baker vs. Mellish, 11 Ves., 68. And again, lie says: “But it is well -.settled by the highest authorities, that even where an order overruling a demurrer is followed by an order taking the hill for confessed, and referring the cause to a master for an account, according to the prayer of the bill, neither is a final decree in any sense, but a mere interlocutory order in favor of the plaintiff, and on the return of the master's report the final decree may he the other way.” For which he cites, Smith vs. Eyles, 2 Atk., 385 ; Bank U. S. vs. White, 8 Pet., 262 ; Perkins vs. Fourniquet, 6 How., 206; and 16 How., 82; Pulliam vs. Christian, 6 How., 209; Beebe vs. Russell, 19 How., 283, and Gerrish vs. Black, 109 Mass., 474.

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 *482would have brought the case legally before this Court, and authorized it to examine the grounds upon which the-decree had been made."

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 *483were entertained, but tbo question of the right of appeal was passed by the Court sub silentio, and without decision. And as was said by the Court, in the case of Snowden vs. Dorsey, 6 H. & J., 114, such cases should not he called into precedent. But the statute is imperative, and I am not willing to disregard it, not even to make the Court appear consistent.