Schroeder v. Loeber

• Decision Date: 30 April 1892
• Citation: 75 Md. 195,24 A. 226
• Parties: SCHROEDER v. LOEBER.
• Court: Maryland Court of Appeals

24 A. 226

75 Md. 195

SCHROEDER

v. LOEBER.

Court of Appeals of Maryland.

April Term, 1892.

On rehearing.

Louis P. Hennighansen and M. R. Walter, for appellant.

Samuel Regester and S. S. Field, for appellee.

BRYAN. J. In the brief filed by the appellee in support of the motion for reargument it is supposed that this court committed an error in founding its opinion on certain testimony which did not support the averments of the bill of complaint. It was said that the allegata and probata must correspond, and that in making a decree the court was confined to what was stated in the bill. The testimony in question was not excepted to, and this court was therefore bound to give effect to it. The thirty-fourth section of article 5 of the Code provides as follows: "On an appeal from a court of equity no objection to the competency of a witness, or the admissibility of evidence, or the sufficiency of the averments of the bill or petition, or to any account stated and reported in said cause, shall be made in the court of appeals, unless it shall appear by the record that such objection was made by exceptions filed in the court from which such appeal shall have been taken." It is no matter whether the averments of the bill cover the case proved in evidence or not; we are obliged to decree according to the matter established by the proof. The section of the Code is made up chiefly of the act of 1832, c. 302, § 5. It has been frequently construed, and the practice under it is well established. In Harwood v. Jones, 10 Gill. & J. 419, this court said: "The decree of the county court, it is said, must be reversed on account of the variance between the allegations in the bill and the proof in the cause. Whether there be such variance or not we have deemed it unnecessary to inquire, because, according to our interpretation of the fifth section of the act of 1832. c. 302, it is immaterial whether there exists such variance or not. No exceptions having been filed in the court below, either to the admissibility of the evidence or the sufficiency of the averments of the bill, the complainant is entitled to an affirmance of the decree in this court, if warranted by the proof, whether his allegata and probata correspond or not." In Oliver v. Palmer, 11 Gill. & J. 443, it was said: "The second point of the appellants is 'that neither the case stated in the hill, nor the case attempted to be proved, shows any title in the complainants to the interposition of a court of equity. On the contrary, by their own showing they have ample remedy at law.' To escape from this objection the appellees have insisted that, even if their bill be too artificially drawn, by reason of an insufficiency in its averments, to entitle them to the relief they have sought, yet that, the proof in the case having clearly established their right to the interposition of a court of equity, the appellants are by the fifth section of the act of 1832, c. 302, precluded from urging as a ground for reversal any such defect in the bill. And, if their assumption of the efficacy of the proof offered be correct, we entirely concur in the position they have assumed. Being of opinion, as before stated, that not only by the broad and explicit language of the acts of 1825, c. 117, § 2, and 1832, c. 302, § 5, are final decrees under the first section of the act of 1820, c. 101, embraced, but that upon the soundest principles of equity jurisprudence they ought so to have been, does the proof show a case entitling the...