Waverly Mutual & Permanent Land, Loan & Building Ass'n v. Buck
| Decision Date | 20 November 1885 |
| Citation | 1 A. 561,64 Md. 338 |
| Parties | WAVERLY MUT. & PERMANENT LAND, LOAN & BUILDING ASS'N OF BALTIMORE CO. v. BUCK AND OTHERS. |
| Court | Maryland Court of Appeals |
Appeal from circuit court for Baltimore county, sitting in equity.
L P. Henninghausen, for appellant.
Geo. R. Willis, for appellees.
This is an appeal from an order of the circuit court of Baltimore county sitting in equity in a cause in which the appellant was plaintiff and the appellees were defendants. The material facts forming the foundation for this controversy are revealed by the record, from which it becomes apparent that the appellant, being an incorporated building association located and transacting business in the town of Waverly, in Baltimore county, and the appellees being members of this association, and holding four shares of its capital stock they, the said appellees, obtained an advance of $600, that sum being the par value of their shares, and executed and delivered to the association a mortgage upon certain real estate situated in said county, and belonging to them, as security for the payment of 25 cents to said corporation every week upon each of said four shares of stock, until such weekly payments, increased by the appellees' proportional part of the profits accruing from the transaction of the business of the association, should aggregate a sum equalizing the amount of the loan. There is also a covenant in said mortgage making it obligatory on the appellees to pay into the treasury of the association the weekly sum of 25 cents on each $150 advanced for interest and expenses, with a reduction of 25 cents in the weekly interest upon each payment of $150 in dues, and there are the usual covenants for the payment of taxes and insurance. In case of default in any of the conditions of the mortgage for the period of three months the whole debt shall be deemed due and demandable.
The appellant on March 15, 1883, filed a bill for foreclosure, averring that the mortgagors were in default because of the non-payment of dues. The appellees, in their answer, admitting that they were members of the association, and received the loan, and executed the mortgage, as averred in the bill of complaint, denied that they were ever credited with any of the profits, and averred that about November 20, 1882, there was a tender made by them to the corporation of all sums of money due and owing to it under the covenants and conditions of the mortgage. The appellees also aver in their answer that the said mortgage is tainted with usury, and that the corporation has not such a legal existence as is necessary to enable it to perform the obligations created by the covenants, and pray a reference to the auditor in order that an account may be stated. To the account filed by the auditor both parties excepted, and upon a hearing the papers were remanded, with instructions. The court subsequently passed the order from which this appeal is taken. This order determined that the plaintiff is not entitled to the relief prayed for in its bill of complaint, and directs the auditor to state an account simply as between debtor and creditor. The plaintiff having appealed from the order filed by the circuit court, the appellees have filed a motion to dismiss the appeal. This motion necessarily presents the first question for determination; for, if the appeal was prematurely taken, a proper disposition of the motion would result in a termination of the pending proceeding.
An appeal shall be allowed from any final decree, or order in the nature of a final decree, passed by a court of equity. Code Md. art. 5, § 20. The apparent object of this statutory restriction on the right of appeal is to prevent the protraction of litigation to an indefinite period by reiterated application for an exercise of the revisory powers of the appellate tribunal. If, for alleged errors in any interlocutory proceeding, a case could be brought here for revision, a multiplicity of appeals would create vexatious delay, and might eventually result in a ruinous accumulation of costs. To avoid this manifest evil, an appeal on a final determination of the questions presented by the issue brings every supposed erroneous ruling in the intermediate proceedings under review, when all such errors as are discovered can be corrected. The construction of the statute has elicited repeated decisions, and it is now a well-settled principle that the ruling of the court below must, in order to form the proper basis for an appeal, be so far final as to determine and conclude the rights involved in the action, or deny to the party who seeks redress by an appeal "the means of further prosecuting or defending the suit" in the court of original jurisdiction. Boteler v. State, 7 Gill & J. 109; Welch v. Davis, 7 Gill, 364; Green v. Hamilton, 16 Md. 326; Hazlehurst v. Morris, 28 Md. 67.
There is no analogy perceptible between the case presented by this record and that of Dennison v. Wantz, 61 Md. 143, which has been cited as authority in support of this motion. That was an appeal from an order overruling a demurrer and requiring the defendant to answer by a certain day. Clearly, this was no final decision of the matters in controversy. Had the defendant answered, and the cause progressed by regular procedure, the final decree might not have been adverse to the party appealing. But in the pending litigation the order appealed from is, in effect, a decision of the very matter in controversy, and that decision is adverse to the appellant. It denies its right to the relief invoked in its bill of complaint, and it cannot proceed a step further in the prosecution of its suit. The only remedy open for it was an appeal, which has been properly taken, and the motion to dismiss must therefore be overruled. The sum advanced on the four shares held by the appellees was $600, and a weekly payment as interest of 25 cents on each share is required by the terms of the mortgage. The appellees contend that this charge is usurious, as the statute, under the provisions of which this association was incorporated, designates 6 per cent. as the proper rate, and inhibits the taking of more, and that, therefore, a charge in excess of the sum so...
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