17 Md. 62 | Md. | 1861
Lead Opinion
delivered the opinion of this court.
This appeal has been brought before the court under the 25th section of the 5th Article of the Code. We do not think the true construction of this section authorises an appeal in a case predicameuted as is this one. That section was intended, with a slight modification, as a codification of the Act of 1832, ch. 197, which authorised an application to the judges of the Court of Appeals, or one of them, when an injunction should have been refused by the county court. Under that Act nothing but the bill and its exhibits were to bo submitted tó the judge of the Court of Appeals. By this section of the Code it is provided, that whenever an injunction shall have been refused by a “judge of a court of equity,” the clerk of the court “shall forthwith transmit the original papers, comprising the bill or petition and exhibits, and the said court’s order of refusal, to the Court of Appeals, and the said court shall hear and determine the appeal,” &c.. &c.
Although the Act of 1835, ch. 380, is no longer in force, we are yet of the opinion that, by consent, as in this ease, proof may be taken before any one agreed upon. Before the passage of the Act of 1835, the practice prevailed in several, if not in all, the judicial districts of this State, of taking tes
Looking to the public character of the improvement contemplated by the defendants, and the importance of an early settlement of the question whether the complainant b'e entitled to an injunction, we think proper to say, that on the bill, answer and proof, as laid before us, and on which the judge of the circuit court acted, we are of the opinion the injunction ought not to have been granted. The bill made a fit case for injunction, but it was changed by the answer and proof. As other proof may be taken, or an action instituted at law, it is proper we should abstain from the discussion oí the facts and law of the case, as it now stands.
Appeal dismissed.
Dissenting Opinion
I dissent from my brothers upon the construction of the 25th section of the 5th Article of the Code, and think the appeal was properly taken; but agree with them in the opinion •that, upon the bill, answer and proof, the injunction was properly refused.