Hewlett v. Shaw

Campbell J.: The bill in this case was filed to restrain the enforcement of a writ of attachment against certain lands alleged to have been conveyed to complainant by the attachment debtor, with knowledge in the defendant before the attachment was sued out. An answer was put in and replied to, and au order was made to examine witnesses in open court. The case being noticed for hearing on pleadings and proofs, the Circuit Judge refused to permit any wit [347] nesses to be examined, and dismissed the bill for want of equity. The answer, in addition to meeting the facts, claimed the benefit of a demurrer upon this ground. It is a well settled rule in equity that if the bill does not make out a proper case for relief, no relief can be granted under ’any state of the pleadings. Where this objection is taken by general demurrer, no question of fact can be discussed, because the bill is, for the purpose of the hearing, taken as true. But where an answer is put in, the defendant raises issues of fact upon all matters not admitted, and either party acquires the right, if it be replied to, of introducing evidence, so that if the court where the case is pending, or the apjDellate court, should regard the bill as presenting a case proper for hearing, the truth of it may be determined on the hearing. The right of appeal is an absolute one, and the appellate court acts upon the case by what is equivalent to a re-hearing. If in the appellate tribunal the bill is regarded as a proper one, the parties are entitled to have a decree passed upon the merits. By refusing to admit any evidence, the Circuit Court prevents this, and leaves the case where the appellate court can not pass upon it as justice requires. Any decree, therefore, which is made before the parties have had an opportunity of introducing such proofs as they have a right to submit, has the same effect as a premature hearing, and should not be allowed to stand. Without now deciding upon the validity of the bill, because the case was not presented in such a shape as to make it ripe for decree without proofs, we feel constrained to reverse the decree, and remit the cause to the court below to be re-heard upon pleadings and proofs. Our action is not to. be regarded as alfirming or settling the right of the complainant to seek relief in such a case as he has made, but simply as requiring the case to be disposed of according to the rules, which are necessary to render appeals adequate to a complete disposition on the issue. [348] Manning and Christiancy JJ. concurred.