filed the following dissenting opinion, as to the right of appeal:
I cannot agree in the determination that this appeal should he entertained by this Court. It is taken from an order overruling demurrers to the bill, and directing the defendants to answer. It would seem to he too plain for argument, that this order is not a final decree, and it is *478equally clear that it cannot, in any proper sense, be taken as “an order in the nature of a final decree;” and unless it can he fairly treated as an order in the nature of a final decree, the right of appeal does not exist. Code, Art. 5, sec. 20.
It has been repeatedly held by this Court, that the right of appeal from Courts of equity is a statutory right, and does not exist except where expressly given. Dillon vs. Ins. Co., 44 Md., 394 ; Heath & Lovejoy vs. Irelan, 14 Md., 388; Wheeler vs. Stone, 4 Gill, 39 ; Thompson vs. McKim, 6 H. & J., 302.
No appeal' lies from any interlocutory order which does not definitively and finally settle some contested right involved in the litigation, as between the parties. 14 Md., 388.
Such being the settled principle, what right involved in the litigation is finally determined by the order overruling the demurrers and requiring the defendants.to answer?.
It is the settled practice, if the demurrer to the hill be overruled, the defendant must be required to answer the hill by a certain day ; and he is then at liberty to plead or answer ; and by his answer, he may insist on the matters relied on by his demurrer. If he elects to rely úpon his demurrer, and refuses to answer, the Court may then take so much of the bill as is well pleaded, covered by the demurrer, as confessed, and thereupon proceed to decree. Alex. Ch. Pr., 58, 59; Collateral Security Bank vs. Fowler, 42 Md., 393, 402. But, unless an opportunity he given to answer, after overruling the demurrer, no final decree can he entered ; and the entry of such final decree, without the opportunity to answer, would he plain and' palpable error, .for which the ' decree would he reversed. Trego vs. Skinner, 42 Md., 426, 433 ; Smith vs. Ballantyne, 10 Paige, 101.
The order overruling the demurrer, therefore, simply determines that the bill is proper to he answered by the *479defendant; but no final decree is determined upon, and such decree can only be settled and passed after the defendant’s failure to answer, according to the requirement of the Court.
This is made manifest by looking to the nature and purposes of the demurrer.
At law, the demurrer imports, that the objecting party will net proceed with the pleading, because no sufficient statement has been made by the adverse party; but submits to the judgment of the Court, whether he is bound to answer. In equity, the demurrer has precisely the same import. It demands the judgment of the Court, whether the defendant shall be compelled to answer the complainant’s bill, or that particular part of it to which the demurrer applies. Mitf. Eq. PI., 106, 107, 108; Sto. Eq. PI., secs. 436, 441. And if the demurrer be overruled, the simple judgment of the Court is, that the defendant be required to answer ; and this falls exactly within the definition of an interlocutory order or decree, as given in Seaton on Decrees, p. 2. The order therefore, overruling the demurrer, determines no right, but only a mere question of pleading.
In this case, the order overruling the demurrers required the defendants to answer, according to the established practice; but instead of answering, or waiting for a final decree in default of answer, they have appealed to this Court.
Now, in actions at law, that no appeal will lie from the interlocutory judgment overruling a demurrer to thé declaration or other pleading, but only from the final judgment, is too well settled to admit of a question; and this because such judgment neither settles nor concludes any right between the parties. It determines a mere matter of pleading. Wheeler vs. The State, 7 Gill, 33; Welsh vs. Davis, Ib., 364, 366; Boteler & Belt vs. State, use of Chew, 7 G. & J., 109 ; Gittings vs. The State, 33 Md., 461; *480Dietrich vs. Swartz, 41 Md., 196. That being so, why; should there be a distinction between the interlocutory judgment at law upon overruling the demurrer, and the same character of judgment or order in equity, in respect to the right of appeal, unless such distinction be made by statute? And clearly no such distinction has been made by statute, and, in my judgment, none should be made by decision.
But has not the question been substantially, and to all reasonable intents and purposes, decided by this Court, in the case of Danels vs. Taggart, 1 G. & J., 311 ? In that case, to a bill for an account, the defendant pleaded in bar an account stated, and balance due thereon to-the defendant. To that plea the plaintiff demurred, and the plea was overruled, and the defendant was ordered to answer' the bill, as in this case. And upon an appeal from that order by the defendant, it was held, after full consideration, that the appeal would not lie. That the order determined no question of right between the parties, hut only decided a question of pleading. In reason and principle I can perceive no substantial distinction whatever between that case and the present.
To show how this question has been considered by other Courts of high authority, I will take occasion to refer to a few cases.
In the case of Forbes vs. Tuckerman, 115 Mass., 115, the Court had occasion to consider the nature and effect of an order overruling a demurrer to a bill in equity. And in holding the order to be a mere interlocutory order, having in its nature nothing final, Chief Justice Gray, speaking for the Court, said that no decree is final, which leaves anything open to be decided by the. Court, and does not. determine the whole case. “ Even an order allowing or sustaining a demurrer is not a final decree, unless, in terms or effect, it dismisses the bill and puts the case out of Coirrt;” and he cites 6 How., 103; 3 Paige, 505; and *481Baker vs. Mellish, 11 Ves., 68. And again, lie says: “But it is well -.settled by the highest authorities, that even where an order overruling a demurrer is followed by an order taking the hill for confessed, and referring the cause to a master for an account, according to the prayer of the bill, neither is a final decree in any sense, but a mere interlocutory order in favor of the plaintiff, and on the return of the master's report the final decree may he the other way.” For which he cites, Smith vs. Eyles, 2 Atk., 385 ; Bank U. S. vs. White, 8 Pet., 262 ; Perkins vs. Fourniquet, 6 How., 206; and 16 How., 82; Pulliam vs. Christian, 6 How., 209; Beebe vs. Russell, 19 How., 283, and Gerrish vs. Black, 109 Mass., 474.
In the case of De Armas vs. United States, 6 How., 103, on a question of the right of appeal, where the statute had provided, that in all cases the party against whom the decree might he finally given, should he entitled to an appeal, it was held, that an order sustaining a demurrer to the bill or petition, because it was multifarious, and because the names of proper parties were not set forth, was not, in any sense, a final judgment or decree from which an appeal would lie, inasmuch as the bill had not been dismissed, but was still remaining in Court. And the Supreme Court, in dismissing the appeal, speaking by Chief Justice Tajtey, said: “Nothing is decided but a question of pleading, and a question as to proper parties. The petition appears to be still pending in the District Court; and the objections upon which the Court decided against the petitioners might be removed, if the appellants desired it, by an application to the Court for leave to amend. But if the petitioners did not move for leave to amend, and preferred taking the opinion of this Court upon the questions decided against them in the District Court, then, under the opinion given by that Court upon the demurrer, it should have proceeded to pass a final decree dismissing the hill. An appeal from that decree *482would have brought the case legally before this Court, and authorized it to examine the grounds upon which the-decree had been made."
And so in this case; if the defendants had determined to stand upon the demurrers, they should, by refusing to answer, have allowed the bill .to be taken as confessed, and a final decree to be passed thereon, and from that taken the appeal, and not from the order simply overruling the demurrers.
Our statute was intended to regulate and restrict the right of appeal, with a view "of preventing unnecessary delays and the accumulation of costs. Hence the right of appeal is confined to decrees that are final, or orders in the nature of final decrees. No order, therefore, that has not the nature and effect of finality in it, in respect to the subject-matter of the litigation, can be the subject of an appeal, except in those cases expressly provided for by the statute. Otherwise, it would be difficult, if not impracticable, ever to bring a much controverted litigation to an end. Eor if an appeal will lie from an order overruling a demurrer to the entire bill, it must, for the same reason, lie from an order overruling a demurrer to parts of the bill; and it is not difficult to perceive how such modes of defence may be resorted to for the purposes of delay, and to the great injury and annoyance of the party complaining. Affirming the order on the present appeal, the case is remanded, and if the defendants should fail or decline to answer, a final decree maybe passed; but from that final decree another appeal may be taken by the defendants; and thus" the litigation may be, if the parties are so inclined, most vexatiously protracted. This was never the design of the statute. *
It is true, there have been cases brought into this Court on appeals from orders like the present; but the question of the right to maintain such appeals has never, before the decision in this case, been adjudicated. The appeals *483were entertained, but tbo question of the right of appeal was passed by the Court sub silentio, and without decision. And as was said by the Court, in the case of Snowden vs. Dorsey, 6 H. & J., 114, such cases should not he called into precedent. But the statute is imperative, and I am not willing to disregard it, not even to make the Court appear consistent.