Wilmer v. Placide

Urner, J., delivered the opinion of the Court, The appellee filed a bill of complaint for the purpose of having’ a deed from one of the appellants to the other decreed to be fraudulent and void as against the grantor’s subsisting ■creditors. In connection with an answer denying the fraud ■certain pleas to the bill were filed which alleged, in substance, that the efficacy of the deed in passing title from the grantor to the grantee was recognized in a motion to dismiss made by the present appellee on an appeal to this Court in another proceeding between the parties, and that in a partition suit instituted by the appellee, and involving the land affected by the deed here in question, contradictory positions were assumed by the plaintiff in reference to the effect of the deed and the interests of the present defendants in the property. The pleas were set down for hearing and, after argument, ¹⁷⁰ the Court below ordered that they be stricken out as legally insufficient and that the answer filed in support of the pleas should stand as an adequate response to the bill. The present appeal is from that order.

A motion has been made to-dismiss the appeal on the ground that the order from which it has been taken is not appealable. In the comparatively recent case of Peoples v. Ault, 117 Md. 631 , it was held that an appeal from an order overruling-a plea to part of a bill of complaint could not be entertained, and in a very early case the same view was taken as to theappealability of an order overruling a plea to the bill as a whole; Danels v. Taggart, 1 G. & J. 311 . It has been held, however, in a number of later cases that when a demurrer to the entire bill is overruled, an appeal will be allowed from such action; Stinson v. Ellicott City & C. Co., 109 Md. 115 ; Darcey v. Bayne, 105 Md. 365 ; Hyattsville v. Smith, 105 Md. 318 ; Peoples v. Ault, supra; Hendrickson v. Standard Oil Co., 126 Md. 583 ; Hecht v. Colquhoun, 57 Md. 563 ; Chappell v. Funk, 57 Md. 465 . The argument is that there is no difference in principle between a. plea and a demurrer, so far as the effect upon the right to maintain the suit is concerned, and that in holding an order overruling a demurrer to the bill as a whole to be appealable, the decisions just noted must be regarded as having established a similar rule in reference to orders overruling pleas whose scope is equally unrestricted.

If demurrers and pleas in equity were in reality the same in their general and practical effect, there could, of course, be no valid reason for discriminating between them in reference to the question as to whether rulings tipon them are subject, to appellate review in advance of the final decree, but a comparison of these separate methods of challenging the plaintiff’s right to the relief sought by the bill of complaint will disclose substantial differences in their nature and functions. The office of a demurrer is simply to demand the judgment of the Oourt as to the sufficiency of the case stated in the bill. A plea relies upon its averment of a distinct ¹⁷¹ fact, which is supposed to present, if proven, an effectual bar to the prosecution of the suit; Rouskulp v. Kershner, 49 Md. 521 ; Miller’s Equity, 181. If the demurrer is sustained, and the case can not be aided by amendment, the bill is dismissed.

But when the plea is held good, the issue of fact it raises is still open for