Funkhouser v. Mooers

Johnson, J., delivered the opinion of the Court. This is an appeal from an order passed by the Circuit Court for Frederick County, in Equity, refusing to strike out its previous order granting appellee (plaintiff below) leave to amend her original bill of complaint and also overruling appellant’s demurrer to the amended bill of complaint. While, as observed, the order appealed from is twofold in character, appellants neither in their brief nor in oral argument before this court have questioned the correctness of the order with respect to the demurrer. For this reason that question will, under section 4 of Rule 39 of this court, be treated as abandoned.

To the original bill of complaint filed October 21st, 1937, the appellants both answered and demurred. The chancellor sustained the demurrer, but neither dismissed the bill nor granted leave to amend. Until January 14th, 1939, no further action had been taken by either of the parties when plaintiff petitioned for leave to amend, which leave was granted. Appellants thereupon, after being summoned, again both answered and demurred to ²⁶⁸ the bill.

At the time for hearing on the demurrer, appellants moved to strike out the court’s order granting leave to amend, and, as above observed, the correctness of that order in denying the motion is the only question presented for consideration. Appellant’s argument to support their contention that the chancellor had not the power to permit the amendment of the bill of complaint is based upon the premise that the chancellor’s order sustaining the demurrer to the original bill was final; that it determined his inability to proceed further in the case upon the allegations contained therein, and it is well settled that from an order sustaining a demurrer an appeal will lie to this court. There can, of course, be no doubt that the order is final in the sense that an appeal may be taken from the chancellor’s action in overruling or sustaining the demurrer (Miller’s Equity Procedure, section 307), but in our opinion it does not follow that it was final in the sense that the chancellor could not permit a bill to be amended after sustaining a demurrer thereto. Code, art. 16, sec. 182, provides as follows.: “If, upon the hearing, any demurrer shall be allowed, the court may, in its discretion, upon