Emersonian Apartments v. Taylor

Decision Date16 January 1918
Docket Number111.
Citation103 A. 423,132 Md. 209
CourtMaryland Court of Appeals

Appeal from Baltimore City Court; Chas. W. Heuisler, Judge.

Suit by Rachel Taylor against the Emersonian Apartments and others. From a judgment overruling defendants' demurrers, they appeal. Appeal dismissed.

Aubrey Pearre, Jr., of Baltimore (Barton, Wilmer & Stewart, of Baltimore, on the brief), for appellants.

Augustus C. Binswanger, of Baltimore (Louis Samuels, of Baltimore, on the brief), for appellee.


Each of the appellants, who were defendants below in a suit by the appellee against them, filed a demurrer to the declaration. The demurrers were overruled, with leave to the defendants to plead within 15 days. They filed a writing declining to file pleas, and the same day there was an entry of "judgment on the demurrers in favor of the plaintiff for costs." From that the defendants took this appeal.

No motion to dismiss the appeal was made, but we suggested at the argument that it was questionable whether the appeal would lie, and upon further consideration we are satisfied that there can be no doubt about the question, under the decisions of this court; there being nothing in the form of the judgment to take it out of the general rule. It is no longer an open question in this state as to whether an appeal can be taken from a ruling on a demurrer in a suit at law before final judgment. It has been repeatedly decided that such an appeal will not lie, and, as was said in 2 Poe on Pl. & Pr. § 826, in speaking of it as a well-settled rule, it is "absolutely necessary to be enforced, in order to prevent the regular progress of a cause unto its final determination from being interrupted by successive appeals from rulings made from time to time during the litigation." In Chappell v. Funk, 57 Md. 465 the court held that an appeal did lie from an order overruling a demurrer to a bill in equity and requiring the defendants to answer, although Judge Alvey filed a vigorous dissent, and in the course of his opinion said:

"Now, in actions at law, that no appeal will lie from the interlocutory judgment overruling a demurrer to the declaration or other pleadings, but only from the final judgment, is too well settled to admit of a question; and this because such judgment neither settles nor concludes any right between the parties. It determines a mere matter of pleading"

-citing Wheeler v. State, 7 Gill, 33; Welch v. Davis, 7 Gill, 364, 366; Boteler & Belt v. State, use of Chew, 7 Gill & J. 109; Gittings v. State, 33 Md. 461; Dietrich v. Swartz, 41 Md. 196. To those may be added Griffee v. Mann, 62 Md. 248; State v. Easton Club, 72 Md. 297, 20 A. 242; Cooper v Novickow, 116 Md. 471, 82 A. 207; Warfield v State, 116 Md. 599, 82 A. 1053, Ann. Cas. 1913C, 824.

While it may be desirable in some equity cases, where the evidence may be at great length and the expenses very heavy, to entertain appeals at once from rulings on demurrers, our observation has been that it is sometimes productive of unnecessary and even vexatious delays, in addition to imposing heavy burdens on litigants, in paying larger fees to their solicitors, who may be required to appear in this court several times, instead of meeting all questions at one hearing. The tendency of this court has been for the most part to limit rather than to extend the rule in equity cases. Peoples v. Ault, 117 Md. 631, 84 A. 60; Somerset Rapid Transit Co.'s Case, 126 Md. 368, 94 A. 911. In Wheeler v. State, supra, there was a demurrer to the replication, which the county court overruled, and the defendants appealed. Judge Dorsey said:

"The appeal in this case must be dismissed, as prematurely taken. Instead of waiting until the inquisition was taken, and a final judgment rendered in the cause, the appellants appealed from the interlocutory judgment of the county court overruling their demurrer. From the final judgment in the cause, no appeal has been prayed."

In Green v. Hamilton, 16 Md. 317, 77 Am Dec. 295, Judge Tuck said:

"An appeal will not lie from a judgment on demurrer against the defendant in an action of debt on a bond with collateral condition, until an inquisition is taken and final judgment entered; the appeal must be taken from the final judgment. Wheeler v. State, 7 Gill, 33. The reason is that the first judgment is merely interlocutory. The same rule applies where a judgment by default is entered, and, from the nature of the case, an inquisition is necessary to ascertain the extent of the plaintiff's right to recover. Wilmer v. Harris, 5 H. & J. 1."

At the argument when doubt was expressed as to whether an appeal would lie, it was stated by the attorneys for both sides that their desire was to have this court pass on the right of the plaintiff to recover, and it was in effect, if not in terms, admitted that the form of the judgment was agreed upon by them-believing that it would enable the defendant to appeal at once. If it is a final judgment, then the plaintiff is precluded from further recovery; and if it is not final, then under the numerous authorities no appeal lies. On the other hand, if it be held that the appeal does lie, and this court should be of the opinion that the plaintiff had a good cause of action, but also thought that the declaration was technically defective, and then reversed the judgment, with leave to the plaintiff to amend, the defendants, instead of being liable for costs, might be subjected to a verdict in a substantial amount. It is therefore difficult to understand how either party can be benefited in this case, and we are not supposed to decide some other case in this. Since the argument the attorneys have united in what is called the "Supplemental Statement of Counsel and Additional Authorities," and in it both sides contend that the appeal is properly taken. It is said that:

"It is respectfully submitted that a reversal of the judgment below would be a final conclusion of this case, and that an affirmance of the judgment below would perhaps leave open the question of what damages should be ascertained by the jury in an inquisition. Such damages could be clearly ascertained from the measure of damages laid down by this court on the pleadings; wherefore there would be left open no matter of pleading or evidence for further action of the lower court, to which any exception could be taken or from which an appeal could be prayed by either appellants or appellee. All the rights of the parties involved would be finally determined by this appeal."

Manifestly that statement cannot aid the position taken by the attorneys in reference to the right of appeal. In the first place, a reversal of the judgment would not necessarily be a final conclusion of the case; but, if it was, it is practically conceded, and it is unquestionably true, than an affirmance would leave open the question of damages. It therefore might or might not be finally settled by this court; but the question is, not what might be then, but whether it was a final judgment when it came to this court. It is not correct to say that there would be no matter of evidence left open to which exception could be taken, for, when a judgment by default is being extended by an inquisition, exceptions can be taken to the rulings of the court in reference to the admission of testimony, and prayers can also be offered which are subject to exceptions. 2 Poe, § 368. Then, after stating that this was a test case, and that a number of similar cases were being held in abeyance awaiting the determination of this appeal, it is said:

"Therefore counsel for appellee respectfully submits the determination of the questions raised, and waives the right of the plaintiff, appellee, to have damages awarded to her by an inquisition hereafter."

Again, it is said:

"As previously stated by counsel for the appellee, any damages in excess of the costs are expressly waived herein, and there is here no undetermined quantum of damages."

Without referring to the question whether an attorney could bind his client by any such attempted waiver, it is clear that, if a waiver be necessary, it could not now relate back and give the right of appeal. This court ought not to be expected to spend its time in deciding questions of law which can be of no service to ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT