Belt v. Blackburn

Robinson, J., delivered the opinion of this Court. The preliminary questions, raised upon the state of the pleadings in this cause, were correctly decided by the Special Judge, for the reasons assigned by him, in the able and learned opinion, filed in the Court below. It is well established, that a party may either expressly or impliedly, waive a right or advantage, which he might have enforced in proper time and manner. This principle, recognized alike by Courts of Law and Equity, applies with peculiar force to this case.

The bill was filed in April; 1863, and the answer, in May, following. Upon the prayer of Blackburn, one of the defendants who did swear to the answer, a day was set apart for the hearing. At the time designated, objection was made by the complainants to the,order setting the cause down for a hearing, and another day was fixed. Again the hearing was postponed, and the defendants appealed from the order, granting the injunction.

In the appellate Court, no objection was made to the answer, although if made, the appeal would have been dismissed. Keighler vs. The Savage Manufacturing Co., 12 Md. Rep., 412 . The order granting the injunction was affirmed, and the cause remanded. Upon the petition of Blackburn it was reinstated, a day fixed for the hearing, and leave given to take proof.

Both parties proceeded to take evidence, giving notice to each other. New parties, complainants and defendants, were made, and other proceedings had; and on the 21st of November, two years and a half from the filing of the answer, on the day set apart for the hearing, exceptions to the answer, for the first time were taken. From all these proceedings, we cannot escape the conclusion, that both parties regarded the issues as fairly made, and that the cause was to be heard on its.merits, free from any technical objections to the manner in which the defence was presented. To permit exceptions to be filed to the answer at this stage of the cause, would be to grant not only an indulgence unreasonable in itself, and to encourage vexatious delays in the prosecution of suits, but it would be manifestly unjust to the de ²⁴¹ fendants who have incurred the expense of taking proof, upon the well grounded belief, that the ease was to be heard upon its merits.

The cases of Gibson vs. Tilton, 1 Bland, 353 , and Salmon vs. Claggett, 3 Bland, 126 , relied on by counsel for appellants, are not in conflict with these views. These cases were decided previous to the passage of the Acts of 1835, chapters 346 and 380, authorizing parties to take proof, and when on a motion to dissolve an injunction, the Court was confined absolutely to the bill and answer. The motion, therefore, in the language of the Chancellor, “in its very nature was founded upon the correctness and sufficiency of the answer.” In such a case, the defendant could not object to the filing of exceptions to the answer, at the hearing, because “having planted himself upon the sufficiency of his answer, at that time and for that purpose, he stands pledged to sustain it in all respects; or he must fail in his motion.” In this case, therefore, the answer must be taken free from all objections, either on account ot “ irregularity or insufficiency; ” and being in our opinion, responsive to all the material allegations in the bill, the burden of proof rests with the complainants. How far the evidence entitles them to the relief prayed, is the next question to be considered.

If entitled, it must be upon the faith of an agreement, alleged in the bill to have been made by Blackburn, on the 20th January, 1863, by which he was to bring into the Orphans’ Court, all the property unadministered, to be invested by said Court, pending the litigation between the parties, touching the title to said property; and the fraudulent evasion of this agreement, by the subsequent petition of Blackburn, and the order of the Orphans’ Court, passed thereon, on the 10th of March, directing the distribution to be made. In the former appeal, in this cause, from the order granting the injunction, this Court decided “ that the order of the 10th of March, was passed by the Orphans’ Court, upon a matter within its jurisdiction, and could not be impeached collaterally, except on the ground that there was such impro ²⁴² priety in the action of the Court as would vitiate it; such as want of notice to the parties, or collusion with the administrator, or that it was obtained by fraud, or imposition.” After a careful examination of all the evidence, it is our opinion, that the allegation in the bill, as to