Harryman v. Harryman

Alvey, J., delivered the opinion of the Court. Amos A. Harryman, being the only defendant who had appeared, and there being no orders taken as against those who had failed to appear, demurred to the bill as amended, upon the ground of supposed multifariousness; and the Court below,.being of opinion that the bill as amended was obnoxious to the objection taken, by its decree of the 5th of March, • 1877, dismissed the bill generally, with costs to the defendant. Whether the bill as amended was really multifarious, may admit of great doubt; and even conceding that it was originally subject to that objection, whether the objection was not elfectually waived and the defendant precluded from insisting upon the demurrer, by the proceedings that were had in the cause with his sanction, after the entering of the demurrer and before decree thereon, hardly admits of a doubt. See cases of Gibbs vs. Clagett, 2 Gill & J., 14, and Dunn vs. Cooper, 3 Md. Ch.

Dec., 46. But we are not now to decide these questions. It appears, by an affidavit filed in support of a motion to dismiss the appeal, that Amos A. Harryman, the defendant upon whose demurrer the bill was dismissed, died on the 12th day of July, 1877, and by the record it is shown that the appeal was. not prayed until the 27th of September, 1877—more than two months after the death ⁶⁹ of the only defendant who had appeared to the cause. Therefore, at the time of the appeal taken, there was no defendant in Court, and no one to meet the appeal in the appellate Court.

An appeal, like all other judicial proceedings, must have proper parties. This Court, in the absence of express authority, cannot proceed to hear and determine the appeal, on a mere ex parte presentation by the appellant. And the state of case here presented does not seem to be provided for by any statute upon the subject. Section 9 of Art. 2 of the Code provides that no ease pending in this Court shall abate by the death of either of the parties to such appeal, if the proper representative of the deceased shall, at the first or second term after such death, make the necessary suggestion, and appear to the appeal for the purpose of prosecuting or defending the same.

Section 10 of the same Article provides for the case of the death of the plaintiff in appeal or writ of error before the term to which such appeal or writ of error is returnable to this Court; and section 11 provides that when a case in under rule argument in this Court, and a party shall die, having an attorney in Court, this Court may proceed to give judgment to have the same effect as if the party were alive. And then we have section 13 of the same Article, added by the Act of 1862, ch. 167, whereby it is provided that in any case where one or more of the appellants or appellees shall die after appeal taken or writ of error sued out, and before final judgment in this Court, and the executor or administrator of the party shall fail to appear in this Court and suggest the death, and there be judgment given as if the party deceased were alive, in such case, it is made lawful for any surviving party to such appeal to suggest the death of the deceased party, prior to the entering up of the judgment in this Gourt, and show to