McKee v. Coffee
McKee v. Coffee
Opinion of the Court
delivered the opinion of the court.
We are(asked by appellee to dismiss the appeal in this case because improperly taken. The objection made is, that it does not appear that the appeal was granted or the appeal-bond approved by the court below. Sect. 2310 of the Code of 1880 gives the right of appeal in all cases from decrees overruling demurrers, provided the appeal is applied for and bond given during the term of the Chancery Court at which the demurrer is overruled. Sect. 2311 ¡provides for appeals to be granted by the chancellor, in term-time or vacation, from interlocutory orders or decrees. By sect. 2317 the manner of
The demurrer in this case was filed on the 4th of April, 1881; the appeal-bond was filed on the 5th, and is indorsed, “Approved by me in open court. J. E. Stone, clerk.”
We conclude that this approval of the bond in open court on the day succeeding the filing of the demurrer sufficiently shows the appeal to have been taken during the term at which the demurrer was overruled. No order or act of the chancellor or court was necessary to the validity of the appeal; if there had been a petition for appeal presented, it would have been properly addressed to the clerk, under sect. 2317, because the appeal was a matter of right, under sect. 2310, and not one which thé chancellor might or might not grant, under sect. 2311.
We are of opinion that the chancellor erred in overruling the demurrer. The wrongs complained of are such as are constantly redressed by actions at law, and for which, except under peculiar circumstances, which are not shown to exist here, relief cannot be sought in equity. It is apparent that the bill cannot be sustained as a bill for discovery, because, if ■for no other reason, the bill shows that complainant has full knowledge of the matters as to which discovery is prayed.
The decree overruling the demurrer is reversed, demurrer ¡sustained, and bill dismissed.
Reference
- Full Case Name
- Isaac L. McKee v. Julia G. Coffee, Guardian
- Status
- Published
- Syllabus
- 1. Appeal. From order overruling demurrer. How taken. Under sect. 2310 of the Code of 1880, the defendant in a case in chancery may appeal, as a matter of right, from an order overruling his demurrer to the bill, during the term at ■which it has been overruled; and under sect. 2317 of the same Code, the petition for such appeal should be addressed to the clerk of the court. H. Same. From order overruling demurrer. Evidence as to when taken. A demurrer in a case between certain parties was filed on one day, and on the next day an appeal-bond was filed by the defendant, and the clerk of the court indorsed thereon these words: “ Approved by me in open court. J. E. Stone, clerk.” Held, that these facts sufficiently show that the appeal was taken during the term at which the demurrer was overruled. 8. Chancery. Jurisdiction. Infants. Improper conduct of tax-collector. C., as guardian of certain minors, filed a bill in chancery against M., alleging substantially these facts: M., as sheriff and tax-collector, sold the land of the minors and bought it himself. In order to get it released from his claim, their guardian was compelled to pay M. twice as much as it had cost him. And previous to the sale of the land, M. levied upon and sold eight mules belonging to the minors, ostensibly for the purpose of paying their delinquent taxes for the year 1877; but before selling the mules he starved them for several days, so that they brought only a nominal price. The bill charged that M.’s purchase of the land was illegal, and in fraud of the rights of the complainant’s wards, and claimed that he should be compelled to refund all the money he had received from the sale of the mules and for the release of the land, except an amount equal to that paid out by him for the taxes on the land, and asked that an account be taken to ascertain the amount due. ■ Held, that the remedy at law is adequate, and the complainant is not entitled to any relief in chancery. 4. Same. Jurisdiction. Discovery. A bill for discovery cannot be maintained where it shows that the complainant has full knowledge of the matters as to which discovery is sought.