Barnum v. Gordon , 28 Md. 85 ( 1868 )

Bartol, C. J.,

delivered the opinion of this Court.

The case now before us is a motion to dismiss the appeal taken from the refusal of the Court below, to grant the injunction asked for in the appellants’ petition, filed on the 9th of July, 1867. The case is brought here on the original papers, under the 25th section of the 5th article of the Code of Public General Laws, and the question is whether under that section, this Court has jurisdiction to entertain the appeal. The papers show that before the injunction was refused, the appellees had filed an answer to the petition. After matui’e deliberation and a careful consideration of the able arguments which have been presented on both sides, a majority of the Court have come to the conclusion that the appeal must be dismissed, and that in such a case this Court has no jurisdiction to entertain the appeal. This decision is placed upon the ground that such has been the construction given to this section by our predecessors, in two cases where the question was raised and elaborately argued. We refer to the decision in Steigerwald vs. Winans, et al., 17 Md. Rep., 62, and to the ease of Rogers, et al. vs. Jarrett, et al., decided at the last term of this Court. This last decision is an authoritative affirmance of the construction given in the former,, and the facts so far as this question is concerned were very similar to those in the present case. We ought not to overrule these decisions, whatever our views might be, if the question were res nova. The. remedy, if any mischief should be thought to result from this construction, is with the Legislature.

(Decided 1st February, 1868.)

In expressing this opinion, it is proper we should state that the Judge, to whom an application for an injunction is made, may with perfect propriety take time for consideration, and give notice to the parties to be affected by the injunction, or their counsel, and afford them an opportunity to be heard, in any case in which he may believe the purposes of justice may be thereby subserved.

Appeal dismissed.