Griffee v. J. & H. Mann & Co.

Stone, J., delivered-the opinion of the Court. The appeal in this case must be dismissed. It was taken from an interlocutory judgment of the Circuit Court overruling a demurrer to the petition. From such a judgment no appeal will lie. Wheeler, et al. vs. State, use of Bateman’s Adm’r, 7 Gill, 83. The counsel for the appellant have very earnestly asked the Court for its opinion on the principal question involved in the case, and have assured us that the appellees were equally anxious to have our views upon it, so as to prevent another appeal. "We have, therefore, concluded to accede to this request, and to give our opinion as to the principal question involved in the case; premising, however, that this case must not be taken as a precedent for our action in any future case, and that what we here may say, cannot have the force and effect of a final determination of the law of the case, as the case itself is not properly before us. The facts are these : The appellees filed a petition in the. Circuit Court for Carroll County, against the appellant, a trader, alleging that he, the appellant, had committed an act of insolvency, and praying that he might be adjudicated an insolvent. This petition with an affidavit thereon, was duly filed within the sixty days after the commission of the alleged act of insolvency. To this petition, the appellant demurred, and the Court below sustained the demurrer, but at the same time gave the appellees “leave to make such amendments as will effectuate that provision of the law.” The ground upon which the Circuit Court sustained the demurrer was, that there was a defect in the affidavit to the petition, and giving the leave to amend, necessarily meant a leave to amend the affidavit. Some delay occurred after the filing of the demurrer before the decision of the Court upon it, and that decision was not rendered until more than sixty days after the alleged act of insolvency. In a few days after the decision [254] upon the demurrer, an amended petition was filed, and to this amended petition the appellant again demurred, hut his demurrer was overruled and from that he appealed. The question upon which the parties desire our opinion is whether this amended petition should not have been filed within sixty days from the commission of the alleged act of insolvency. By the 24th section of the Act of 1880, chap. 172, it is provided, “and the Court shall possess power to allow any amendments necessary to present the rights of the matter.” When therefore the Circuit Court gave the appellees leave to amend, they did what the law, in express terms, gave it the right to do, and which the law moreover confided to its discretion. If the .Circuit Court had the power to allow amendments at all, the allowance or refusal to allow an amendment is a discretionary power, and not the subject of review by this Court. Scarlett vs. The Academy of Music, 43 Md. 303. There is nothing in the law restricting the right of amendment to any particular part of the proceedings, but its language is broad enough to cover every step in the proceedings, from the petition to the last order filed in the case, whenever the Court may think an amendment necessary to present the right of the matter. The Court having, as we have seen, the right to allow amendments, the only remaining question is, whether the second petition was in fact, an amendment of the first, and not an original proceeding. On this subject there can be no doubt. The second petition is styled “ the amended petition,” and recites the original petition, the demurrer thereon,, the leave to amend, and that the second petition was the amended petition. This amendment was made in an orderly and proper manner, and with more care than amendments generally are, and can in no sense be considered as an original proceeding. [255] (Decided 29th May, 1884.) The appellant seems to suppose that the Circuit Court-only took jurisdiction in the case at the time the amended petition was filed, and as that was not filed for more than sixty days from the date of the alleged act of insolvency, the petitions are barred by the limitation of the sixty days. This is not so. The facts necessary to give the Court the proper jurisdiction, are first, debts to the amount of at least $250; secondly, the petition verified by the affidavit of the petitioner, and thirdly, that it shall be filed within sixty days from the date of the act of insolvency, Each and everj one of these facts existed as the record clearly discloses. The debts of the petitioners exceeded $250; the original petition was filed within sixty days from the act of insolvency, and it was verified by the affidavit of the petitioners. The defect in the affidavit first made according to the opinion of the Court below, was the merely formal one that the affidavit did not show affirmatively that the affiants were members of the creditor firms. That they were in fact members of the firm, and as such made the affidavit, is shown by the subsequent part of the record. The petitioners having thus complied with the legal requirements to give the Court jurisdiction, the jurisdiction attached at the date of filing the original petition, and the amended petition therefore refers back to that period, and is within the time limited by law. Appeal dismissed.