49 Md. 67 | Md. | 1878
delivered the opinion of the Court.
Amos A. Harryman, being the only defendant who had appeared, and there being no orders taken as against those who had failed to appear, demurred to the bill as amended, upon the ground of supposed multifariousness; and the Court below,.being of opinion that the bill as amended was obnoxious to the objection taken, by its decree of the 5th of March, • 1877, dismissed the bill generally, with costs to the defendant.
Whether the bill as amended was really multifarious, may admit of great doubt; and even conceding that it was originally subject to that objection, whether the objection was not elfectually waived and the defendant precluded from insisting upon the demurrer, by the proceedings that were had in the cause with his sanction, after the entering of the demurrer and before decree thereon, hardly admits of a doubt. See cases of Gibbs vs. Clagett, 2 Gill & J., 14, and Dunn vs. Cooper, 3 Md. Ch. Dec., 46.
But we are not now to decide these questions.
It appears, by an affidavit filed in support of a motion to dismiss the appeal, that Amos A. Harryman, the defendant upon whose demurrer the bill was dismissed, died on the 12th day of July, 1877, and by the record it is shown that the appeal was. not prayed until the 27th of September, 1877—more than two months after the death
The statutes from which sections 9, 10 and 11, of the Code just referred to, were codified (Acts 1806, ch. 90, sec. 11, and 1815, ch. 149, sec. 6,) have been construed by this Court, and it was held, as is plain from the language of the statutes themselves, that where a party dies before appeal taken, the Acts did not apply, and that, in such case, the appeal should abide the rule of the common law ; and, as is apparent from the terms of section 13, as enacted by the Act of 1862, ch. 167, there is nothing in that section that has any application to this case whatever.
By the rule of the common law, if the plaintiff in error dies before errors assigned, the death abates the writ; but a writ of error in no case abates by the death of the defendant in error, (except, of course, in criminal cases,) whether the death happens before or after errors assigned ; (1 Bac. Abr., 14, 15; Green vs. Watkins, 6 Wheat., 260; Carroll vs. Bowie, 7 Gill, 34;) and the same rule applies in cases of appeal. But where the defendant dies before ■the writ of error sued out, or the appeal taken, and there be no new parties made to represent the deceased, or no existing parties in the cause upon whom the law devolves the rights and interests which belonged to the deceased, in such case, the appeal cannot be maintained as against such deceased party, and there is no power in this Court, by any process at its command, to supply the necessary parties to such appeal.
. In the case of Owings vs. Owings, 3 Gill & J., 1, it was held that no appeal could be taken from a decree of the Chancellor, after the death of the only complainant in the cause, in the name of such complainant; and that neither the appearance of the representatives of the deceased party, after proof of death in this Court, nor the appearance of the other party, cured the defect; and the appeal was dismissed. And the principle of that case was re-affirmed in
Appeal dismissed.