Dixon v. Dixon

Briscoe, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court, for Dorchester County, sitting in equity, dated the 22nd day of June, 1912, appointing a receiver to take charge and possession of the goods and effects of one Richard H. Dixon, late of Dorchester county, deceased, pending litigation as to the administration of his estate. The order also directed an injunction to issue as prayed, upon the plaintiff’s bill and affidavit thereto. The bill was filed on the 25th of June, 1912, by the plaintiffs below, children of the decedent, by his first marriage, claiming to be creditors of his estate and seeking a number of reliefs, among them being the appointment of a receiver and the granting of an injunction, as will appear by the prayer of the bill.

The appellants, on the record, and the defendants below, are Helen V. Dixon, widow; Richard H. Dixon, Jr., and Marie Dixon, children of the decedent, by a second marriage. On the 6th of August, 1912, the defendants filed 'a demurrer to the whole bill and on the 7th of August, 1912, the plaintiffs joined issue on the demurrer as interposed. On the 10th of August, 1912, the defendants filed an order for an appeal from the order of Court appointing the receivers and granting the injunction, in the case. The appellees have made a motion to dismiss the appeal principally upon the ground that no sufficient answer has been filed to the bill before the appeal was taken, as required by sec. 27 of Art. 5 of the Code of Public General Laws ⁴¹⁵ (Bagby’s).

This section provides that an appeal may be allowed “from any order granting an injunction or from refusal to dissolve tbe same, or from an order appointing a receiver, tbe answer of tbe party appealing being first filed in tbe cause. It bas been often beld by this Court, that a demurrer to the whole bill will be treated as an answer for tbe purposes of tbe appeal, within tbe meaning of tbe section just quoted and will be taken as an answer for tbe purposes of the appeal. Baltimore v. Giill, 31 Md. 375 ; Baltimore v. Weatherby, 52 Md. 442 ; C. & P. Telephone Co. v. Baltimore, 89 Md. 708 ; Chappell v. Clark, 92 Md. 100 . We think as tbe demurrer in tbe case at bar is to tbe whole bill, it is a sufficient answer thereto to permit, tbe defendants to appeal from tbe order of tbe Court appointing a receiver and granting an injunction and as tbe other grounds alleged for tbe dismissing of tbe appeal are without merit, tbe motion will therefore be overruled.

Tbe case then being properly before us on .appeal, tbe question for our consideration is whether tbe Court below committed an error in granting an injunction and in appointing a receiver upon tbe averments of tbe bill alone, without a bearing upon tbe-part of tbe defendants. In tbe first place, it appears upon an examination of the record, that tbe bill of complaint was not filed, until the 25th of June, 1912, although the order of Court, appointing tbe receiver and granting tbe injunction was passed on the 22nd day of June, 1912. By section 142 of Article 16 of tbe Code of Public General Laws (1912), it is distinctly provided that no order or process shall be made or issued upon any bill, petition or other paper, until such bill, petition or other paper, together with all tbe exhibits referred to as part thereof, be actually filed with tbe clerk of tbe Court. In Chappell v. Clark, 92 Md. 100 , it was beld to be error, to pass an order directing any process to be issued before tbe exhibit referred to in the bill bad been actually ⁴¹⁶ filed as required by the equity rule just cited.

In Chappell’s Case, an injunction had been