Mahaney v. Lazier

16 Md. 69 | Md. | 1860

Le Grand, C. J.,

delivered the opinion of this court.

This is an appeal from an order of the Superior court of Baltimore city, granting an injunction to restrain proceedings at law to recover the amount of a bond.

By the 21st section of the 5th Article of the Code an appeal is allowed, “the answer of the party appealing being first filed in the canse.” In this case the answers of the appellants are filed, and although they are not verified by affidavit, we think they are a sufficient compliance with the provisions of the Code to authorize an appeal. By the 103rd section of the 16lh Article, it is provided, that “it shall not be necessary for any defendant to make oath to his answer, unless required by the complainant.” The bill before us does not require the answers to be sworn to. For the purpose of putting the cause at issue, and upon final hearing they are sufficient without oath. But, to sustain a motion for a dissolution of the injunction, it is necessary, under the latter clause of the 103rd section, 16th Article, that the answer should be sworn to, whether the oath be required by the bill or not.

(Decided June 7th, 1860.)

We consider tire charge of fraud in the bill all sufficient to show jurisdiction in equity; this is not a case of irreparable damage, in which the facts showing the damage are to be set out; it is a case of alleged fraud.

We must, however, reverse the order because the claim of the complainants is not stated with sufficient distinctness, nor are there exhibits accompanying the bill to show that Lazier, or other complainants, are creditors of the defendant Mahaney. “Evidence of their alleged claims ought to have been produced to satisfy the conscience of chancery of their existence.” Union Bank of Maryland vs. Poultney & others, 8 Gill & Johns., 332, and Nausbaum & Bowes vs. Stein & others, 12 Md. Rep., 318.

Order reversed with costs, and cause remanded.