Griffee v. J. & H. Mann & Co.

Stone, J., delivered-the opinion of the Court. The appeal in this case must be dismissed. It was taken from an interlocutory judgment of the Circuit Court overruling a demurrer to the petition. From such a judgment no appeal will lie.

Wheeler, et al. vs. State, use of Bateman’s Adm’r, 7 Gill, 83. The counsel for the appellant have very earnestly asked the Court for its opinion on the principal question involved in the case, and have assured us that the appellees were equally anxious to have our views upon it, so as to prevent another appeal. "We have, therefore, concluded to accede to this request, and to give our opinion as to the principal question involved in the case; premising, however, that this case must not be taken as a precedent for our action in any future case, and that what we here may say, cannot have the force and effect of a final determination of the law of the case, as the case itself is not properly before us. The facts are these : The appellees filed a petition in the.

Circuit Court for Carroll County, against the appellant, a trader, alleging that he, the appellant, had committed an act of insolvency, and praying that he might be adjudicated an insolvent. This petition with an affidavit thereon, was duly filed within the sixty days after the commission of the alleged act of insolvency. To this petition, the appellant demurred, and the Court below sustained the demurrer, but at the same time gave the appellees “leave to make such amendments as will effectuate that provision of the law.” The ground upon which the Circuit Court sustained the demurrer was, that there was a defect in the affidavit to the petition, and giving the leave to amend, necessarily meant a leave to amend the affidavit. Some delay occurred after the filing of the demurrer before the decision of the Court upon it, and that decision was not rendered until more than sixty days after the alleged act of insolvency.

In a few days after the decision ²⁵⁴ upon the demurrer, an amended petition was filed, and to this amended petition the appellant again demurred, hut his demurrer was overruled and from that he appealed. The question upon which the parties desire our opinion is whether this amended petition should not have been filed within sixty days from the commission of the alleged act of insolvency. By the 24th section of the Act of 1880, chap. 172, it is provided, “and the Court shall possess power to allow any amendments necessary to present the rights of the matter.” When therefore the Circuit Court gave the appellees leave to amend, they did what the law, in express terms, gave it the right to do, and which the law moreover