Evans v. M. C. of Crisfield

Constable, J., delivered the opinion of the Court. The appellants filed a bill, asking for an injunction, to restrain the appellee from doing certain work, incident to- the widening of one of the streets of the town of Crisfield. The bill alleged that the appellee had commissioned examiners to widen and condemn one of the streets of said town, seven feet on one side thereof, and to value and assess the damage to be suffered by any person interested in the properties so taken by the widening, and to estimate the benefits that might accrue; and that, after due notice, the appellee met for the purpose of taking final action upon the report of said examiners; and that the appellants then and there, in person or by attorney appeared, and objected to the amount ¹⁸⁶ of damages and benefits awarded then, believing they were mentioned in said report, and presented claims for damages in a larger amount than they have since learned was awarded then, but that, notwithstanding the objections, the report was ratified. That, within the time limited by law for an appeal, the appellants instructed their attorney to take an appeal from said ratification, to the Circuit Court; and that an appeal was taken by the same attorney for a number of other persons interested in the condemnation, but that he failed to take tire appeal for these appellants, and alleges as a reason therefor, that although they and their attorney searched diligently in the report of the said examiners for the names of these appellants, “in connection with any loss or damages incurred by, or benefits accrued to them by said widening,” they were unable to find any mention of them in that connection.

That, after the time for taking an appeal had expired, the appellants were informed that their names were in said report, in connection with damages and benefits, and that, upon inspection, they have seen their names, with damages and benefits written on the back of one of the sheets of the examiners’ report, although the other sheets of said report are written upon the face only. They further allege that that part of the report “was either not included at all in said examiners’ report, or was written on the back of said -sheet, as it is now, at the time of taking said appeál for the other persons aggrieved, but that if it was so included and written at that time, which the plaintiffs do not believe, it was so improperly and inadequately placed there that the plaintiffs and their attorney were unable to find it, and were entirely deceived thereby and for that reason failed to appeal in time.” That they are greatly aggrieved by the grossly inadequate award of loss and damage and “were prevented from appealing by the fraud or negligence or misfeasance of the examiners in failing to include their names properly in the report.” With the bill, there was filed, as an exhibit, a copy of the report of the examiners. ¹⁸⁷ In the answer filed, the appellee denies that the part of the report, dealing with damages and benefits to the appellants, was not included in the report at the time it was made to it, and that the appellants were prevented from appealing by the fraud, negligence or misfeasance of the examiners, in failing to include the names of the appellants properly in the report. The replication was filed, but thereafter, by agreement, the application for an injunction was set down for hearing on bill and answer. Upon which the Court passed a decree denying the injunction and dismissing the bill.

There are two questions to determine. Should the injunction have been denied? If so, should the bill have been retained ? The appellants claim they are entitled to an injunction because of fraud practised upon them.

The fraud charged is, that either the appellee, after the report was made to them by the examiners, and after an inspection of said report by the appellants and their attorney, had written the names of the appellants in said report, so far as benefits and damages were concerned; or that the examiners had written the names, damages and benefits at an improper place, for the purpose of defrauding them out of their right of appeal. As to the first charge, the defendant denies this in its answer, and as this is a hearing on bill and answer, it will necessarily have to be conceded that the truth of the answer is admitted. Ho rule in equity pleading is better established than, when a plaintiff has his cause set down for final hearing on bill and answer, he admits all matters stated in the answer susceptible of proof by legitimate proof. Miller s Equity, sec. 255, and cases cited in notes.

We are of the opinion that the exhibit filed with the bill is a complete answer to the second charge. It is