Equitable Ice Co. v. Moore

Urner, J., delivered the opinion of the Court. The appeal in this ease is from a decree which provided for a sale of the real estate mentioned in the proceedings, unless the defendants, within thirty days from the date of the decree, should pay to the plaintiff a designated sum of money. It is contended that the allegations of the bill of complaint do not admit of such an adjudication. The bill was directed to the enforcement of a mechanics’ lien claim for work and materials furnished in the remodeling of a building and plant used in the manufacture of ice.

The answer disputed the claim, and; a general replication being filed, testimony was taken upon the issues off fact thus raised. After a hearing upon the case as thus developed, the decree appealed from was passed. In consequence of an order given by the appellant to the Clerk of the Court below, for the preparation of the transcript for the appeal, only the bill of complaint, mechanics’ lien claim; answer, general replication and prayer of appeal have been included in the record, and the evidence in the case has been wholly omitted. A copy of the opinion which accompanied the decree has since been added to the record by agreement.

It appears from ³²⁴ the opinion that the decision reached by the lower Court in favor, of .the plaintiff was governed by.the facts established by the proof. No exception or demurrer was filed to the bill upon jurisdictional or other grounds. The primary question to be determined, in this state of the record, is whether the objection sought to be urged against the bill on appeal can be entertained. It is .provided by Article. 5, section 36 of the Code, that on appeal from a court of equity no objection to-“the suffi-eiency of the averments of the bill or petition * * * shall be made in the Court of Appeals, unless it shall appear by the record that such objection was. made by exception, filed in the Court from which such appeal shall have been taken.” This provision has been repeatedly applied: Gerting v. Wells, 103 Md. 637 ; Baltimore & Drum Point R. R. Co. v. Pumphrey, 74 Md. 113 ; Ashton v. Ashton, 35 Md. 503 ; Eyler v. Crabbs, 2 Md. 154 ; Thomas v. Doub, 1 Md. 327 .

In view of the explicit terms of the statutory rule from which we have quoted, and in the absence of any exception to the bill of complaint in the Court below, it is clear that we are without authority to decide any question as to the sufficiency of the bill on this appeal. There was a clause in the answer reserving all lawful objections to any errors in the form and substance of the bill, but this indefinite reservation does, not meet the requirements of the rule. O’Neill v. Cole, 4 Md. 123 . The appellant has endeavored to exclude this case from the operation of the provision we have cited by arguing that the objection he urges does not dispute the general sufficiency of the bill, but merely denies that its allegations are adequate as a basis for the specific relief granted.

The bill averred that, by agreement between the plaintiff and the defendant corporation, the former was to be paid in stock and property of the company for the work and material supplied in the remodelling of the factory. It is conceded that upon this averment, and the prayer for general relief, a decree for ³²⁵ specific performance might have been appropriately passed, if justified by the evidence, but