Krone v. Krone

Weisel, J., delivered the opinion of this Court. The appeal in this case is from an order refusing an injunction. Before the order was filed or the application considered, though after it was 'Set down for 'a hearing, the defendant, now appellee, had filed her answer to the bill. And afterwards, and before the actual hearing of the case, the complainant filed a suggestion that the prayer for the injunction, according to the rule and practice of equity, should be heard and decided exclusively upon consideration of the bill and exhibit, and that it was not competent for the Court to read or consider the answer or any part of it, and so prayed the Court to hear and decide the application for the injunction without reference to the answer or anything therein contained. Whether the Court heeded this suggestion does not distinctly appear from the order of refusal. But it must be assumed that the answer was considered and permitted to have its proper effect, inasmuch as it was the duty of the Court to regard it. Hall vs. McPherson, 3 Bland, 532; Bell vs. Purvis et al., 15 Md. Rep., 22. The Code, Article 5, sec. 25, has not changed this rule of practice. By that section, as construed in Steigerwald vs. Winans et al., 17 Md. Rep., 65, 66, and very recently in the case of Rogers and others vs. Thompson and others, decided at the present term, if an answer has been filed before the application has been heard and disposed of, no appeal lies from an order refusing the injunction. Such a proceeding is not within the remedy provided by that section. So a majority of this Court has determined in both the cases [82] last referred to, and that decision must govern this case and sustain the point urged hy the appellee for the dismissal of the appeal. (Decided 16th May, 1867.) An order setting down the application for a hearing, whether on motion or otherwise, before the coming in of the answer, makes no difference in a case like this. There is no principle or practice which prohibits a defendant from answering immediately or speodil} any complaint; and, as observed by Chancellor Bland, in the case referred to, there is no sound regulation which should hinder the defendant from instantly presenting his answer-so as to prevent the imposition of the threatened restriction. He is hy that’means the more promptly obeying the mandate of the Court. On an application for an injunction the Court is bound to look to and give proper effect to the answer, if in before the application is considered and disposed of. To grant an injunction with an answer before the eyes of the Judge or Chancellor which would have the effect of dissolving it upon motion afterwards, would be an act of supererogation as well as vexatious. Hence, in such cases, we regard the practice as settled in this State by the authorities above cited. The answer being in and the Court required to consider it at the time of passing upon the application and refusing the injunction, it is, in the opinion of a majority of this Court, not a case for an appeal under the section of the Code and the decisions upon it above referred to. Appeal dismissed. ■