Gilbert v. Arnold

Equity Practice — Party in contempt — Bight'of Appeal — Injunction. To a bill for an injunction the defendants demurred, but subsequently withdrew their demurrer, and without leave of the Court filed an answer. The Court upon the bill and exhibits alone, ordered an injunction. Shortly thereafter the defendants paid the fine and the costs of the demurrer as ordered by the Court, according to the provisions of the 102d section of Article 16 of the Code of Public General Laws, and appealed from the order granting the injunction. Helb: 1st. That the defendants being in contempt by the non-payment of the fine and costs imposed by the Cods, upon the withdrawal of the demurrer without leave of the Court, had no right to file their answer, and the Court was justified in passing upon the bill and exhibits without considering the answer. 2d. That inasmuch as the fine and costs were paid by the defendants before the appeal was taken, their answer will be so far considered by the Appellate Court, as to entitle them to the right of appeal from the order granting the injunction. Although a Court of Equity will not grant an injunction to restrain a trespasser, merely because he is a trespasser, yet it will interfere where the injury is irreparable, or where adequate and compensatory damages cannot be obtained by an action at law, or where the trespass goes to the destruction of the property in the character in which it has been held and enjoyed, or where it is necessary to prevent a multiplicity of suits.

Appeal from the Circuit Court for Montgomery County, sitting in Equity. The bill in this case filed on the 1st of February, 1867, by the trustees of Goshen meeting-house and others, members of the Methodist Episcopal Church, prayed an injunction against the appellants to restrain them, their agents and servants from using, occupying or in any manner interfering with the said meeting-house, except in a peaceable and orderly attendance at public worship, under the direction and guidance of the appellees Arnold and Hobbs, or of the duly authorized and regularly appointed ministers of the said meeting-house for the time being, according to the discipline of the Methodist Episcopal Church. On the 18th of February, the defendants filed their demurrer to the bill. The hearing of the case on demurrer was then postponed until the equity term of the Court in May following, when it was fully argued and submitted, and was held “sub curia” until the 16th of July. On that day the Court delivered its opinion, in which it expressed its determination to overrule the demurrer, and grant the injunction as prayed, having already prepared the order to that effect, bearing date the same day; but it was not filed at the time, “ at the request of, and in courtesy to the solicitors for the defendants, ” they desiring “ time to examine the practice of the Courts of Chancery as to their right to withdraw said demurrer, after the opinion of the Court was announced, and .the order was passed, and file their answer to said bill; ” the Court “ not intending by said courtesy to give them' any advantage by said delay, which would come in conflict with the rights of the complainants, as. the proceedings were submitted, argued, considered and passed upon by the Court.” The defendants on the 17th of July, after the announcement of the Court’s opinion, and the passage of the order for the injunction, without leave, filed an order to the clerk withdrawing their demurrer, and filed an answer. On the same day, the order of the Court overruling the demurrer, and granting the injunction, was placed on file by the Court. On the 20th of July the defendants paid to the complainants the sum of ten dollars and the costs of the demurrer, as ordered by the Court, according to the provisions of the Code of Public General Laws, Article 16, section 102, and on the same day entered an appeal from the order granting the injunction. The cause was argued before Baetol, C. J., NelsoN, Stewabt, GeasoN, Millee and RobiNSON, J. The ground taken by the Judge below, that after he had orally announced his opinion, the demurrer was to be considered as passed upon and could not be withdrawn, is at variance with the principle that a Court of Justice can only act by written or record proof of its action, and no verbal orders or opinions can be considered. Seott vs. Fox, 14 Md., 388; Oarlysle vs. Garlysle, 10 Md., 440; Code of Pub. Gen’l Laws, Art. 16, sec. 110. Besides, if it be admitted that the Judge had overruled, formally, the demurrer, his order must or should have been to answer over, and so he conceded the right of the defendants to answer upon the overruling of their demurrer. The record shows that though the Judge dated his opinions overruling the demurrer and granting an injunction, as of the 16th July, 1867, yet they were not, in fact, filed in Court until the 17th July, after the demurrer had been withdrawn and the answers filed. The rule of pleading considers a demurrer as waived where an answer is filed; but in this case it was expressly withdrawn. Tbe effort of tlie Judge was virtually to make his order for an injunction retroact before it was filed, and thus deprive the defendants of the benefit of their answer on the hearing of the injunction bill. His order of the 17th of July, treated the demurrer as being “in effect overruled/’ and imposed a fine of ten dollars and costs, according to the provisions of the Code, Article 16, section 102. The Judge clearly erred in the matter of the demurrer being overruled and not withdrawn, and in supposing that the answers were not before him when he ordered the injunction. Newcomer vs. Needy, 9 Gill, 267; Mahaney, et al. vs. Lazier, et al., 16 Md., 69. The injunction was erroneously granted: 1st. Because the bill on its face failed to aver the identity of the rules, doctrines, &c., of the Methodist Episcopal Church, in behalf of whose ministers it was filed, with the society of Methodists referred to in the trust. The names of the associations were different, as shown by the bill. It is true, that it averred that the society of Methodists named in the trust was the Methodist Episcopal Church of the United States; but that was immaterial, if its doctrines and articles of faith and discipline had been changed. So far from averring the identity of doctrines, rules and discipline, the bill asserted that “ rules and discipline had from time to time been adopted.” 2d. The bill did not on its face show a case of irreparable damage entitling the parties to an injunction. Chesapeake and Ohio Canal Co. vs. Yowng, 3 Md., 480; Herr vs. Bier-bower, 3 Md. Ch.' Leo., 456. 3d. The answers being properly in, were to be considered, in so far as they were responsive to the allegations of the bill. Hubbard vs. Mobray, 20 Md., 165; Dorsey vs. Hagerstown Bank, 17 Md., 4Q8; Colvin vs. Warford, 17 Md., 433; Wood vs. Patterson, 4 Md. Ch. Deo., 335. The answers denied, positively, each and every material allegation tending to show that the complainants were entitled to participate in the trust. The appellants by withdrawing their demurrer without leave of the Court, were in contempt, and were not entitled to file their answer, until the contempt was purged; this Avas not done until the 20th of July, 1867, when the sum of ten dollars and costs, imposed by the Code, were paid to the appellees. Under these circumstances the answer could not be received, and this appeal should be dismissed. Code of Rub. Gen’l Laws, Art. 16, sec. 102; Vowles vs. Young, 9 Vesey, 173; Hewitt vs. McCartney, 13 Vesey, 560; Anonymous, 15 Vesey, 174; 1 Daniel’s Chan. Prac., 488, and note; Johnson vs. Pinney, 1 Paige, 646; Rogers vs. Patterson, 4 Paige, 450; Ellingwood vs. Stevenson, 4 Sandf. Ch. Iiep., 366. If the Court should decline to dismiss the appeal, then the order appealed from should be affirmed. The cause is to be determined as presented by the bill, without reference to any averments in the answer. The averments of the bill on this appeal, whatever may be the real state of the case, must be taken as true. ILaight & O’Connell vs. Burr, 19 Md., 133. The complainants have stated such a case as gives jurisdiction to a Court of Equity, and entitles them to an injunction, and the relief prayed for. The complainants, some of whom are the trustees of the meeting-house, successors of the original trustees named in the deed, sue for and in behalf of a large body5 of preachers and ministers belonging to the Methodist Episcopal Church, as well as for themselves, and it is well settled that where the parties interested are numerous, and the suit is for an object common to them all, some of the body-may maintain a bill on behalf of themselves and of the others. Smith vs. Swormstedt, 16 Howard, 302; Robinson vs., Smith, 3 Paige, 222; Associate Reformed Church vs. Trustees of Theological Seminary, 3 Green Ch. Rep., 77. Courts of Equity have jurisdiction to interpose by injunction, to preserve the rights of trustees, ministers and members of religious bodies, from acts of intrusion by unauthorized persons, under circumstances like those disclosed in the bill. 1 Spence’s Equi. Juris., 672; Germ. Cong. vs. Pressler, 17 La. An. Rep., 127; Winnebrenner vs. Colder, 43 Penn. Rep., 244; Beatty vs. Kurtz, 2 Peters, 579; Brunnenmeyer vs. Buhre, et al., 32 III., 192; Wiswellvs. First Cong. Church, 14 Ohio, 30. Equity will interpose by injunction to prevent a multiplicity of suits against the numerous defendants and their confederates, in respect of the repeated trespasses committed and threatened. Eden on Injunction, 257; Mayor of York vs. Pilkington, 1 Atkyns, 282; Hyde vs. Ellery, 18 Md., 497; Lucas vs. McBlair, 12 Q. & J., 1. The facts stated in the bill disclose a case of impending •irreparable injury to the complainants and to the church, in the character in which it had previously been enjoyed, which cannot be adequately redressed or compensated at law. Beatty vs. Kurtz, 2 Peters, 584; Bonaparte vs. Camden and Amboy R. R. Co., 1 Bald. C.Q. Rep., 206; Baugher vs. Crane, 27 Md., 36; McCreery vs. Sutherland, 23 Md., 480; Davis vs. Reed, 14 Md., 156; Herr vs. Bierbower, 3 Md. Ch. Dec., 457; Shipley vs. Ritter, 7 Md., 408. Even if a Court of law had jurisdiction in respect of the matters complained of, a Court of Equity would nevertheless interpose to protect the trust. 2 Spence’s Equi. Juris., 25 ; Brunnenmeyer vs. Buhre, et al., 32 Illinois, 190; Codd vs. Wooden, 3 Brown’s Ch. Rep., 73. The allegations in the bill place the defendants before the Court as wrong-doers without color of title. But if they could be considered as a seceding majority, the right of user and property remains with those who adhere to the old church organization, however few their numbers. Wiswell vs. First Cong. Church, 14 Ohio, 30; Den vs. Bolton, et al., 7 Halstead, 215; The People vs. Steele, 2 Barbour, 414.