Chappell v. Funk

• Decision Date: 19 January 1882
• Citation: 57 Md. 465
• Parties: THOMAS C. CHAPPELL and THE CHAPPELL CHEMICAL AND FERTILIZER COMPANY v. JACOB FUNK.
• Court: Maryland Court of Appeals

57 Md. 465

THOMAS C. CHAPPELL and THE CHAPPELL CHEMICAL AND FERTILIZER COMPANY v. JACOB FUNK.

Court of Appeals of Maryland

January 19, 1882

The cause was argued before BARTOL, C.J., MILLER, ALVEY and IRVING, J.

R Emmett Jones, and Wm. Shepard Bryan, for the appellees, moved to dismiss the appeal:

Because the order overruling appellants' demurrers to the bill and ordering them to answer, was not in any respect final and was not the subject of appeal. It did not conclude the rights of the parties. As was said in Boteler vs State, 7 G. & J., 113: "For aught that we can learn from the record, the defendants may obtain the final judgment of the Court, and be entirely discharged from the claim of the plaintiff." See also Hazlehurst vs. Morris, 28 Md., 67; Welch vs. Davis, 7 Gill, 366. If any one could imagine that overruling a defendant's demurrer was in the nature of a final decree or judgment, the question has been settled by Wheeler vs. State, 7 Gill, 33; and Kearney vs. State, 46 Md., 424, which expressly decide the contrary.

Charles Beasten, Jr., and S. T. Wallis, for the appellants, against the motion to dismiss the appeal.

The authorities cited in the brief of the appellee, have no relation to the subject, being all cases at law, in which the overruling of a demurrer is held to be not a final judgment, from which an appeal can be taken under the statutes applicable. Upon this, it is not to be presumed, that there can be much difference of opinion.

In the case of the Collateral Sec. Bank vs. Fowler, 42 Md., 393, the position of which, upon the question of the right of appeal, was identical with that of the case at bar, this Court entertained the appeal and remanded the cause, with leave to the respondent to answer over, the ruling below, on the demurrer, having been sustained. It is true there was no motion to dismiss, but the question of the right of appeal stood palpable, upon the threshold of the controversy here, and could not possibly have been overlooked. As between counsel, it was not regarded as an open question, and the Court will perceive that if it had been considered as available, it would have disposed, without more, of a very nice point of equity practice--for the purposes of that case, at all events.

Upon principle, it is difficult to perceive why an order overruling a demurrer to the bill, is not in "the nature of a final decree," under the liberal construction which the Court has put repeatedly upon those words. An order sustaining a demurrer is obviously final, so far as the complainant is concerned. An order overruling a demurrer, is a final decision that the complainant is entitled to relief, as a matter of law, upon the case made by the bill. Thenceforward, he has nothing to do but establish his facts. Why should the defendant be put to the trial of proof of the facts, leaving the question still open behind him, as to whether they will make any case, even if proven? It would seem to the interest of both complainant and defendant, that the case on the law should be settled in advance of a controversy, protracted and expensive, which may turn out to have been entirely needless. What benefit would a respondent in such a case have from noting his appeal and carrying it up with the rest of the proceedings, after a final decree upon the proof? Can he stop the operation of such an order, by giving bond during the pendency of the suit? Obviously not. And the result of these considerations plainly is, that a demurrer to a bill is useless, if there be no appeal when it is overruled. A respondent gains nothing by it if he cannot have his issue of law tried by the appellate tribunal, until he has gone through the delay and expense of trying his issue of fact.

Same Counsel for the appellants.

If the bill is so framed that the discovery sought against the corporation could disclose such a state of facts as to show that said body corporate has nothing to do with the operations of said factory, but that Thomas C. Chappell is operating said factory, then the bill is demurrable by the corporation defendant; and if it is also framed so that the discovery sought against Thomas C. Chappell could disclose such a state of facts as to show that it is not operated by him but by the corporation, then the bill is equally demurrable by Thomas C. Chappell, and in so far as the facts sought to be disclosed against either defendant affect the operations of the other defendant, in creating the injury complained of, then such facts are susceptible of proof by witnesses, cannot be brought out by discovery, and the bill is also on that ground demurrable. Queen of Portugal vs. Glyn, 7 Clarke & Fin., 466.

The appellee, in this case, must decide for himself before he brings his action, one of two things. First, whether his action be joint against the appellants. Second, if it be against one only, which one--for whichever one it may be, the other is improperly joined.

The bill is uncertain as to persons against whom relief is sought; it states circumstances merely, and claims relief against the defendants, or one of them, without stating which one. The discovery sought may subject the defendants to penal consequences, while there is no allegation that the matters sought to be discovered are material, and that they are indispensable as proof to complainant, and that he has no other proof than from the answers of the respective defendants. In addition to this, the matters sought to be discovered are susceptible of proof by witnesses, under the laws of the State of Maryland, relating to evidence. The discovery sought against the corporation defendant, should have been against its officers. In so far as the bill discloses, the defendants have an equal equity with complainant.

Besides, the bill is multifarious. For all of which reasons it is properly demurrable; and it ought to be dismissed. Story's Eq. Pl., sec. 271, and note; Fiery vs. Emmert, et al., 36 Md., 464; Edwards vs. Edwards, Jacobs' Rep., 335; Saxton vs. Davis, 18 Ves., 80; Ellicott vs. Ellicott, 2 Md. Ch. Dec., 468, 470; Armitstead vs. Durham, 11 Beav., 422; Brown vs. Swan, 10 Peters, 502; Oliver vs. Palmer, et al., 11 G. & J., 445; Story's Eq. Pl., sec. 553; 1 Story's Eq., sec. 74; Gibbs vs. Claggett, 2 G. & J., 29.

R. Emmett Jones, and Wm. Shepard Bryan, for the appellee.

First. Jacob Funk had the right to pursue his lawful business, and to occupy his dwelling in peace and quietness, and to be protected in the enjoyment of these rights. The destruction of his business, and the deprivation of all reasonable comfort in the occupation of his home, are injuries which cannot be adequately compensated by pecuniary damages. The circumstances are specifically set forth in the bill of complaint, and present a strong case for an injunction. Dittman vs. Repp, 50 Md., 516; Pennsylvania L. C. Appeal, and notes in the case in American Law Register of October, 1881.

Second. The complainant proceeds for the special grievance to himself. The suggestion in the grounds of demurrer, that the defendants are liable, (on the facts stated,) to criminal punishment, cannot be of any benefit to them. It would be strange indeed, if such a circumstance could authorize them to continue the nuisance. Hamilton vs. Whitridge, 11 Md., 128.

Third. They are called upon to answer the bill of complaint. The complainant has a right to know how much of the bill they will admit, and how much they intend to deny. If there are any allegations in the bill of complaint which they cannot answer without subjecting themselves to criminal punishment, let them state upon their oaths that such is the fact, and ask the Court to decide whether they are compelled to answer these particular charges. But excusing them from answering a particular charge is one thing; and deciding that they are entitled to continue a nuisance is another thing. It may, however, be observed that the bill does not charge a public nuisance; but merely sets forth that the complainant is sustaining irreparable damage from the unlawful acts of the defendants.

Fourth. The bill charges that both of the defendants are carrying on the nuisance, and asks for an injunction against both of them. It also requires them to answer upon their several and respective oaths; and to set forth and discover whether they, or one of them, (and if one, which one,) conduct the factory, which is the subject of complaint. They are both required to answer this interrogatory. It is certainly a proper question for them to answer. It is a strange position to assume that such a question would make the bill demurrable. If the interrogatory had not been inserted in the bill, it would still have been the duty of the defendants to answer as fully and explicitly as this question requires them to do. Story's Equity Pleading, secs. 852 and 855; Methodist Episcopal Church vs. Jacques, 1 Johnson's Chancery Rep., 65. If they admit the matter charged, it will not be necessary to prove it. If they deny it, an issue will be made, which the complainant will have to sustain by proof. In no event will their answer be binding on the adverse party. The objection made to this interrogatory, assumes that even if the complainant sustains all the charges in his bill, he will not be entitled to relief, because of the obnoxious character of the question.

MILLER J., delivered the opinion of the Court.

The bill in this case was filed by the appellee against the appellants, for an injunction to perpetually restrain injury to the complainant's property, brought about as alleged by the manufacturing of vitriol and sulphuric acid in a factory conducted and operated by the defendants upon premises adjoining those of the complainant. Separate demurrers were filed by each of the defendants,...