State v. Easton Social, Literary & Musical Club

72 Md. 297 | Md. | 1890

Alvey, C. J.,

delivered the opinion of the Court.

As we understood at the argument, this and the succeeding case of the State against “The Farmers Social, Literary and Musical Club, of St. Michael's,” both of Talbot County, Avere brought to this Court for the purpose of having definitely settled the question of the right of such clubs to furnish liquor to their own members, at a price fixed by the regulations of the club, notAvithstanding the provision of the local laAv, which declares that no person shall sell spirituous or fermented liquors in the particular localities, under a prescribed penalty. And such being the object of bringing these cases into this Court, it is greatly to be regretted that neither of the records presents the question in such manner as Avill justify this Court in taking cognizance of it.

In the first place, it does not appear that there has been any final judgment or determination, in either of the cases, of the subject-matter of the petition filed by the State. Certain issues of fact were formed, Avhich do not appear to have been tried; and a demurrer was entered by the State to one of the paragraphs of the answer in both cases, AAdrich demurrer Avas simply overruled, and nothing more appears to have been done. The cases are still pending, undisposed of, in the Court beloAv. If the definitive judgment of the Court was against the State on the matter of the petition, it should have been that the petition be dismissed, as directed by section 260 of Art. 23 of the Code. And without such final judgment, no appeal or Avrit of error Avill lie from the mere overruling of a demurrer. Boteler vs. State, 7 G. & J., 78; Wheeler vs. State, 7 Gill, 34; Stevens vs. State, 66 Md., 202.

But the cases have been brought here by petition in error, alleging as ground of error the overruling of the demurrer, instead of an appeal from the final judgment, as authorized by the statute. The proceeding is of special statutory regulation, and the mode of proceeding must be strictly adhered to; and the statute provides, as the only mode of bringing such cases into this Court, that an appeal may be taken by either party, subject to such regulations as may be prescribed by this Court. Code, Art. 23, sec. 202. The regulations prescribed by the Court of Appeals will be found in the Code, Art. 5, sec. 66. It follows that the petition in error in both cases must be dismissed.

(Decided 18th June, 1890.)

Petitions in error dismissed.