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ART. V] APPEALS FROM COURTS OF EQUITY. 33
36.
Where the contention is that while the plaintiff's proper remedy is in
equity, he has been given a decree which is different from the one to
which he may be entitled, or that while the bill is adequate to secure the
plaintiff's interests, it is an insufficient basis for the particular relief
decreed, this section applies, and if the bill was not objected to below, no
question as to its sufficiency can arise on appeal. A clause in the answer
reserving all lawful objections to errors in the form and substance of the
bill, does not meet the requirements of this section. Equitable Ice Co. v.
Moore, 127 Md. 324.
Where a plaintiff files a petition against administrators pendente lite
for the appointment of a receiver, an order being passed accordingly, and
some six weeks later files a petition asking that the order be rescinded,
but then abandons the petition last mentioned and enters an appeal from
the order, such appeal is, in view of article 16, section 4, and of this sec-
tion, premature. Warfield v. Valentine, 130 Md. 595.
To the first note to this section on page 143 of volume 3 of the Anno-
tated Code, add Warfield v. Valentine, 130 Md. 595.
37.
If no exception on the ground of jurisdiction is made below, the ques-
tion cannot be considered on appeal. Equitable Ice Co, v. Moore, 127
Md. 325.
38.
Where the substantial merits of a case will not be determined by either
an affirmance or reversal, it may be remanded for further proof under
this section. Peoples v. Ault, 125 Md. 698. See also Peoples v. Ault, 128
Md. 404.
A case remanded under this section so that the petition may be amend-
ed ; in case of failure to amend, petition to be dismissed. Welch v. Colgan.
126 Md. 15.
A case remanded under this section to give the appellant an opportunity
to produce more evidence. Cacy v. Slay, 127 Md. 501.
Provisions Relating to Appeals from Courts of Law and Equity.
40.
Appeal dismissed under section 62. The burden is on the appellant to
bring the case within this section. The appellant must not only give
directions to enter an appeal and transmit the record, but must pay the
costs so that the record may be transmitted in time. The clerk may not,
however, withhold the making up of the transcript until the costs are paid.
Miller v. Mencken, 124 Md. 675.
Appellee held not responsible for delay in transmitting record; appeal
dismissed under section 6. Horsey v. Woodward, 124 Md. 362.
There being no proof to bring the case under this section, an appeal
was dismissed under section 6. Horseman v. Furbush, 124 Md. 582.
41.
This section applies to registers of wills as well as to clerks. See notes
to section 40. Miller v. Mencken, 124 Md. 675.
See notes to section 40.
44.
The right to a speedy hearing and decision in the Court of Appeals is
specially provided for by this section and by article 33, section 86. An
application for a mandamus to compel the board of canvassers to canvass
and count the votes, held to involve the right to a certificate of an elec-
tion to a public office. Price v Ashburn. 122 Md. 519.
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