Mayor of Baltimore v. Weatherby

Alvey, J., delivered the opinion of the Court. The present is a joint appeal by all the defendants from an order granting an injunction. But one of the defendants, Cunningham, has filed an answer responsive to the facts alleged, and the other defendants have filed a demurrer, assigning causes against the sufficiency of the hill. The complainants have made a motion to dismiss the appeal, upon the ground that all the defendants joining in the appeal have not answered, as required by sec. 21, of Art. 5, of the Code, as preliminary to the right of appeal.

This motion, we think, ought not to prevail. The section of the Code just referred to provides that an appeal may he allowed “ from any order granting an injunction, or from a refusal to dissolve the same, or an order appointing a receiver, the answer of the party appealing being first filed in the cause.” This is substantially the provision that was contained in the 3rd sec. of the Act of 1835, ch. 380, from which the 21st sec. of the 5th Art. of the Code was taken, so far as the right of appeal from orders granting or refusing to dissolve injunctions is concerned. It has been repeatedly decided, upon the construction of the 3rd sec. of the Act of 1835, that any defendant who had answered the bill for an injunction, might appeal from the order granting or refusing to dissolve the injunction, without waiting for the answer of his co-defendants. Barnes, et al. vs. Dodge, 7 Gill, 109 ; Alexander vs. Worthington, 5 Md., 471 .

The same right exists under the 21st sec. of the 5th Art. of the Code. But the question here is, whether a demurrer can he treated as an answer, and therefore embraced within the meaning and purview of the statute, so as to enable those filing the demurrer to join in the appeal ? And upon careful consideration this Court is of opinion that the demurrer, being to the whole hill, may he taken as an ⁴⁴⁸ answer for the purposes of the appeal. It is an answer in law, though not responsive to the facts charged in the bill.

It was taken in the sense of an answer in the case of New Jersey vs. New York, 6 Pet., 323 , and we think it may be taken in that sense here. If, instead of filing the demurrer, the defendants had put in an answer, regularly denominated such, expressly admitting all the facts charged, but denying the right to the relief prayed, such an answer would have been in effect a demurrer, and yet it would certainly have gratified the requirement of the statute. In all cases where any ground of defence is apparent on the face of the bill itself, either from matter contained in it, or from defects in the frame of it, or in the case made by it, the proper mode of defence is by demurrer ; and as it may be the means of preventing an useless and protracted litigation, as well as ruinous expense to the parties, it cannot be reasonably supposed that the Legislature designed to cut off this mode of defence to the bill. Besides, the requirement of the statute in respect to the filing the answer being in the nature of a restriction upon the right of appeal, it should be liberally construed in favor of the right; and especially should it be so construed when no apparent good is to be accomplished by a rigid or technical construction.

To the objection that the statutory requirement may be evaded by the resort to frivolous demurrers, it may be replied that such an abuse is not more likely to occur in regard to the use of demurrers than in regard to the ordinary mode of answering, especially where the answer may be put in without oath. By settled practice, demurrers are required to be signed by counsel, as an assurance to the Court that they are not, in the opinion of the counsel at least, frivolous, and that such a mode of defence is taken in good faith. Besides this, by sec. 102 of Art. 16 of the Code, if the demurrer be overruled, or withdrawn without leave of the Court, the party putting in the demurrer is ⁴⁴⁹ required to pay to the opposite party ten dollars, and all costs accrued by reason of the demurrer, and to stand in contempt until such sums are paid. In the .case of the Mayor, &c. of Baltimore vs. Gill, 31 Md., 375 , the appeal was from an order granting an injunction, and there was no other answer put in than a demurrer to the bill.

The Court below had overruled the demurrer, but that was only an interlocutory order from which no appeal could be taken, ( 3 Gill, 138, 152 ; Code, Art. 5, secs. 22, 24,) and the Court had not proceeded to final decree on the bill. It was the right of the defendants to stand on the demurrer, (Alex. Ch. Prac., 59,) and the appeal was taken from the order granting the injunction, and on that appeal the case was heard in this Court.

It is true, no question was made here in regard to the right of appeal; but we must suppose that the able and experienced counsel engaged in the case well understood that, as the right of appeal in such case was purely a statutory right, there was no power or