Magraw v. Munnikhuysen

Bartol, C. J., delivered the opinion of the Court. Upon a caveat filed by the appellants, in the Orphans’ Court of Cecil county, against the final admission to probate of the alleged will of Emily "W. Magraw, and the separate answers thereto of the appellees, the Orphans’ Court transmitted certain issues to the Circuit Court for Cecil county for trial. . One of the issues presented the question, whether the alleged will was drawn in conformity with the instructions of Emily W. Magraw? The proceedings show that the will was dated the 26th of October, 1869; that on or about the 2d of August, 1869, written instructions for the preparation of the will, were given by the testatrix to Howard Munnikhuysen, and are in his possession, or in that of his counsel.

In this state of case, the caveators filed in the Circuit Court, in the cause wherein the issues were pending, a petition, setting forth that the counsel of Munnikhuysen decline to produce the said written instructions, after due application had been made to them to do so. The petition states that the said written instructions contain evidence pertinent to the issues in this case, and pray that Munnikhuysen' may be required to produce a copy thereof, certified before a justice of the peace, as provided in section 69 of Article 75 of the Code, and that the same may be filed in Court. The Circuit Court, after hearing the parties by their counsel, on the 27th day of September, 1871, passed an order refusing the prayer and dismissing the petition, and from that order- the present appeal is taken. A motion has been made to dismiss the appeal, on the ground that the order was merely interlocutory, and was not such a final judgment of the Court, settling the rights of the parties, as to form the subject of an appeal.

In our opinion, the motion ought to prevail. The practice on this subject has been settled by numerous decisions. It was said in Gitings vs. The State, 33 Md., 461, “that in actions at law no ²⁹³ appeal can be prosecuted until a decision has been had