Hill v. Reifsnider

Bartol, O. J., delivered, the opinion of the Court. The bill in this case was filed by the appellant to restrain the execution of a judgment at law against him, reudered in favor of the appellee, upon the ground that the same was obtained by fraud. The case was heard below, on a motion to dissolve the injunction, upon bill, answer and proofs, and the Circuit Court being of opinion that Theodore L. Fritchey and William B. Thomas, partners under the name of T. L. Fritchey & Co., were necessary and proper parties defendants; and being further of opinion that the bill was otherwise defective in failing to set out the real amount of the debt due by the complainant to Fritchey & Co., with legal interest thereon, and in not tendering or offering to pay the same ; passed an order granting leave to the appellant, upon application, to amend the bill in these particulars, by a day therein named, and on failure to make such application and to file the amended bill on or before the day 'mentioned, declaring that the injunction would be dissolved, and in the meantime, continuing the injunction till the further order of the Court; and it was further ordered that the application of the appellant for leave to take further proof, be refused. From this order the present appeal was taken, and the first question arises upon the motion made by the appellee to dismiss the appeal.

It is very clear that no appeal lies from that part of the order, refusing to grant leave to the appellant to take proof; such an application being addressed to the discretion of the Court, its . action thereon is not a subject for review on appeal. Owings vs. Worthington, 10 G. & J., 283 ; Randall vs. Glenn, 2 Gill, 430 ; Calvert vs. Carter, 18 Md., 74; Cumberland C. & I. Co. vs. McKaig & Gordon, 27 Md., 258, 267. In the case last cited, the application to the Circuit Court was for further time to afford the appellants an opportunity to adduce evidence which ⁴³¹ was refused, and this Court held that the question was one depending upon the discretion of the Circuit Court, and from its decision thereon no appeal would lie. As it respects the other part of the order, it seems to us equally clear that the appeal cannot be entertained; for the reason that it is merely interlocutory, not in its nature a decretal order; as it does not finally settle any right in dispute between the parties.

From such an order it has been repeatedly decided no appeal lies. We refer to Snowden vs. Dorsey, 6 H. & J., 114 ; Hagthorp vs. Hook’s Admr., 1 G. & J., 270 , and Phillips vs. Pearson, 27 Md., 242 ; in each of which this Court decided against the right of appeal irom interlocutory orders similar in their nature to the one in the present case. That the order before us is not final is manifest from its terms ; it directs that the complainant have leave, on application, to amend his bill as indicated, and states that if not so amended on or before a future day therein named, the injunction would then be dissolved; but the injunction was in the meantime, continued till the further order of the Court. This was not a final action by the Court upon the subject-matter, but a mere declaration of a purpose or intention to be carried into efiect in the future; which it might or might not subsequently change; and until carried into efiect worked no injury to the appellant.

As it was said by Judge Dorsey in Hagthorp vs. Hook, "'tis true the Chancellor in considering this case, has discussed all the matters both of law and fact, which he deemed in any way involved in the decree, eventually to be pronounced, and has distinctly declared what he intends to decree. But his intentions form no ground for an appeal, he may abandon or change them ad libitum; until carried into efiect, no injury can result from them. It is only from what he has done, and not from what he intends to do, that an appeal will lie.” ⁴³² Being of opinion for the reason stated that the appeal in this