Summary
dismissing a subsequent appeal for lack of a final or appealable order
Summary of this case from Baltimore Steam Co. v. Baltimore Gas & Electric Co.Opinion
[No. 100, October Term, 1949.]
Decided March 9, 1950.
Appeal — Order Overruling Demurrer to Answer to Order to Show Cause on Petition for Submission of Issue to Jury and Order Denying Petition Not Final or Appealable — Decision of Question Raised under Statute Providing for Raising of Preliminary Question of Law upon Court's Order for Opinion of Court in Such Manner as It Deems Expedient Is Appealable If Nature of Question and Decision Makes It Appealable — Could Not Be Invoked to Permit Appeal in Case at Bar as No Such Order as Statute Authorizes Was Made.
An order overruling a demurrer to an answer to an order to show cause on a petition for submission of an issue to a jury is not a final or appealable order. p. 655
An order denying plaintiff's petition for the impanelling of a jury as provided in Code (1939), Art. 31A, § 9, to determine as a fact whether defendant held a franchise to operate its business within a certain area, is not final or appealable. p. 655
The decision of a question raised under Code (1939), Art. 16, sec. 226, providing that if it appears to the court that there is a question of law, which it would be convenient to have decided before any evidence is given, the court may make an order and direct such question of law to be raised for the opinion of the court in such manner as the court may deem expedient, is appealable if the nature of the question and the decision makes it appealable. In the case at bar sec. 226 could not be invoked to permit an appeal from an order denying a petition for the submission of an issue of fact to a jury, for no such order as sec. 226 authorizes was made. pp. 655-656
J.E.B. Decided March 9, 1950.
Appeal from the Circuit Court for Dorchester County (HENRY, C.J.).
Suit by the Commissioners of Cambridge against the Eastern Shore Public Service Company of Maryland for a declaratory judgment declaring that defendant is without a franchise to serve the citizens of Cambridge with electric power. On a former appeal a decree sustaining a demurrer to the bill of complaint was reversed and the case remanded. Commissioners of Cambridge v. Eastern Shore Public Service Co., 192 Md. 333. From an order overruling a demurrer to an answer to an order to show cause on a petition filed by plaintiff for the submission of an issue to a jury, and from an order denying its petition, plaintiff appeals.
Appeal dismissed.
The cause was argued before MARBURY, C.J., DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.
Frederick P. McBriety, with whom was Emerson C. Harrington, Jr., on the brief, for the appellant.
The Court declined to hear argument for the appellee.
Frederick W.C. Webb and Woodcock, Webb, Bounds, Travers Adkins, on the brief, for the appellee.
On the former appeal in this case we sustained against a demurrer, the bill of complaint for a declaratory decree that defendant is without a franchise to serve the citizens of Cambridge with electricity. Commissioners of Cambridge v. Eastern Shore Public Service Company, 192 Md. 333, 64 A.2d 151. After remand of the case plaintiff filed a petition "that a jury be impanelled as provided in Section 9 of Article 31A of Flack's 1939 Code for the purpose of determining the following issue of fact: Does the defendant hold a franchise to operate its business within the corporate limits of Cambridge?" Section 9 of Article 31A, the Uniform Declaratory Judgments Act, (which is not uniform as to section 9, since that section is taken, part from the draft act, part from the federal act), provides, "9. (Jury Trial.) When a proceeding under this Article involves the determination of issues of fact, such issues may be submitted to a jury in the form of interrogatories, with proper instructions by the court, and either a general or special verdict may be taken." Plaintiff contends that this provision for submission of issues to a jury is not discretionary, but mandatory, even in an equity case, thus overthrowing equity procedure, as settled for centuries in Maryland and in England, ( Borssuck v. Pantaleo, 183 Md. 148, 36 A.2d 527, 156 A.L.R. 1140; Chase v. Winans, 59 Md. 475; Miller on Equity Procedure, § 232), and also providing means of insuring delay in a special procedure designed to expedite justice. The instant case is an equity case; the nature of the case is equitable, and after declaratory relief the only relief plaintiff could obtain would be equitable.
On plaintiff's petition an order to show cause was passed. Defendant filed an answer, showing cause, to which plaintiff filed a replication, in which it demurred to the answer. The court overruled plaintiff's demurrer and dismissed its petition for submission of an issue to a jury. Plaintiff has appealed from the orders of the court in (1) overruling its demurrer, and (2) denying its petition.
More than a bare statement, that an order overruling a demurrer to an answer to an order to show cause on a petition for submission of an issue to a jury is not a final or appealable order, would be superfluous.
The order denying the petition likewise is not final or appealable. Plaintiff invokes section 226 of Article 16 of the Code, which provides that "if it appear to the court * * * that there is a question of law in any case, which it would be convenient to have decided before any evidence is given, * * * the court may make an order accordingly, and may direct such question of law to be raised for the opinion of the court * * * in such * * * manner as the court may deem expedient * * *." In this case no such order was made. Hall v. Hughes, 119 Md. 487, 494, 87 A. 387. Moreover, the decision of a question raised under section 226 is appealable if the nature of the question and the decision makes it appealable, ( Buckler v. Safe Deposit Trust Co., 115 Md. 222, 80 A. 899), not otherwise. In the instant case denial of plaintiff's petition is a routine interlocutory procedure order, which does not become anything else through an attempt to describe it in the words of section 226.
Appeal dismissed, with costs.