Maas v. Maas

• Decision Date: 08 November 1933
• Docket Number: 7.
• Citation: 168 A. 607,165 Md. 342
• Parties: MAAS v. MAAS ET AL.
• Court: Maryland Court of Appeals

168 A. 607

165 Md. 342

MAAS v. MAAS ET AL.

No. 7.

Court of Appeals of Maryland

November 8, 1933

Appeal from Circuit Court No. 2 of Baltimore City; Eugene O'Dunne, Judge.

Bill by F. Leonard Maas against Eugene A. Maas and another. From an order sustaining a demurrer to the bill, with leave to amend plaintiff appeals.

Appeal dismissed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Eugene Frederick, of Baltimore, for appellant.

Benjamin H. McKindless, of Baltimore (John Calvin Carney, of Baltimore, on the brief), for appellees.

PARKE Judge.

F Leonard Maas filed on September 29, 1932, his bill of complaint against Eugene A. Maas and the E. A. Maas Plumbing & Heating Organization, a body corporate, in the circuit court No. 2 of Baltimore city, to enjoin any effect being given by the corporation to all shares of its stock issued after February 3, 1932, and the payment of all salaries authorized by the vote of such stock, and to procure a receivership pending the litigation and for general relief.

A demurrer was filed to the bill of complaint and to its every paragraph by both of the defendants. The chancellor, by an order passed on January 17, 1933, sustained the demurrer with leave to the complainant to amend in twenty days. After the expiration of this period, the plaintiff, without amending and without any other action by the court, entered an appeal from the order sustaining the demurrer, with leave to amend. The first question, therefore, is whether an appeal lies from an order sustaining the demurrer to a bill of complaint for relief by way of injunction, with leave to the plaintiff to amend within a prescribed time, when the plaintiff does not amend, but takes an appeal after the expiration of the time allowed for an amendment, but without the passage by the court of a decree dismissing the bill of complaint and adjudging which party should pay the costs.

Although a ruling of the court sustaining the demurrer to a whole bill of complaint, without a decree in terms dismissing the bill, has been held to be sufficiently in the nature of a final decree to support an appeal, yet it is not invariably a final decree, because (a) the plaintiff has the right, upon the payment of such costs as the court might direct, to amend his bill of complaint as is provided by section 17 of article 16 of the Code; and (b) the court may, in its discretion, allow pursuant to section 176 of article 16 of the Code, the plaintiff to amend his bill of complaint upon such terms as the court shall deem to be reasonable.

So, in the case of Huber v. Baltimore Trust Company, Executor and Trustee, 158 Md. 697, 147 A. 599, the appeal was dismissed because it was held that an order at once sustaining a demurrer to the bill and giving leave to amend is not such a final determination of the rights of the parties as to be appealable. Nor was the action of the court in sustaining the demurrer, with leave to amend, a refusal to grant an injunction according to the prayer of the bill of complaint within the meaning of section 35 of article 5 of the Code. The chancellor thereby advised the pleader that he would give him an opportunity to present his cause unincumbered by the vice in pleading which made the submitted bill of complaint insufficient to present an equity to move the court. So, instead of conclusively rejecting the application, the court postponed its final ruling in order that errors in the form of the complaint might be corrected or some deficiency in averment might be supplied to give substance and a justiciable quality to the allegations. Unlike an order sustaining a demurrer to the entire bill, the order now at bar did not deny the relief asked, nor did it preclude the plaintiff from any other course on the pleading. While the effect of the chancellor's decision was to render it impossible to proceed without amending the bill, yet the suit to obtain the injunction and the other relief prayed was not terminated. The chancellor expressly reserved final action, and, if the plaintiff did not desire to amend but to appeal forthwith, he should have sought and obtained a decree of dismissal or an unqualified refusal of the injunctive relief sought. The pending appeal is distinguishable from those suits in equity where a disputed right or interest of the parties has finally been settled, as where a demurrer to the whole bill has been overruled ^[1] or sustained, without leave to amend, ^[2] or an injunction has been granted or unqualifiedly refused, ^[3] but falls within the category in which the order or decree is neither final nor decisive of a disputed right or interest of the litigants. Huber v. Baltimore Trust Co., 158 Md. 697, 147 A. 599; Hughes v. Hall, 117 Md. 547, 550, 83 A. 1023; Diedel v. Diedel, 133 Md. 286, 105 A. 271; Brooks v. Sprague, 157 Md. 160, 165, 145 A. 375; Reynolds v. Russler, 128 Md. 606, 98 A. 75; Peoples v. Ault, 117 Md. 631, 636-637, 84 A. 60; In re Buckler Trusts, 144 Md. 424, 427, 125 A. 177. Compare Bonaparte v. Lake Roland R. R. Co., 75 Md. 340, 344, 23 A. 784.

The demurrer to the bill of complaint raised questions which, while fatal to the bill of complaint because of patent formal defects, might, nevertheless, have been removed by amendments which would have been in harmony with the theory upon which the bill of complaint was framed. In affording the pleader an opportunity to present his allegations of illegality and fraud in an artificial manner, the court did not deny the plaintiff his remedy, but suggested the method whereby redress could be had, if the indicated grounds of relief were well, instead of insufficiently, pleaded.

It is the office of pleading to present the substance of the complaint in a clear, succinct, and definite manner, so that the adverse party be advised of the nature of the complaint, and the court perceive whether or not there is stated a cause within its jurisdiction. So it is a general rule that, in an application for the summary remedy of injunction, it is essential that there be not only a full and candid disclosure of all the facts, but the documents upon which the rights of the plaintiff depend, if in his possession, be filed with the bill of complaint, and, if the original be not in his possession, but accessible, that a copy thereof be incorporated as a part of the bill. The agreement which the plaintiff has stated is declared to be oral, but, since its subject-matter is the issue of stock of the defendant corporation, and the control and management of its affairs, this agreement will derive whatever validity it may possess from the special provisions, if any, of the articles of incorporation. Since the granting of an injunction to preserve rights whose existence depends upon the validity of such a contract is in the sound discretion of the chancellor, it became material and essential that the chancellor weigh the allegations of the bill with respect to the issuing of stock in association with the terms of the charter of incorporation, and therefore it was indispensable that the articles of incorporation be made a part of the bill of complaint. Miller's Equity Procedure, § 582.

The bill of complaint makes clear this necessity. It alleges that on October 21, 1926, the complainant and the defendant Eugene A. Maas agreed to form a corporation for the purpose of engaging in the general plumbing and heating business, and on that day, they, together with a certain Henry L. Maas, executed a certificate of...