English v. Smith

13 Conn. 221

Opinion

Church J.

1. The foundation of the appellants’ objec tion to the several decrees in question, and the reasons of theii appeal therefrom, is, that the persons appointed by the court o probate to be commissioners on said estate, stood in such rela tion to some of the creditors of said insolvent, as by law to bt disqualified to act in that capacity; and that, therefore, tht order of the court of probate appointing them, and all subse quent orders founded upon their proceedings, were either erroneous or void.

But the plaintiffs in error object, in the first place, that, as Smith & Sherman, the appellants, did not present their claims against said estate to the commissioners appointed, within the time limited by the court, they have no rights as against said estate, and cannot be considered as aggrieved persons; and therefore, had no right of appeal. It is obvious that this ob-ection is founded upon a petitio principii, and proceeds upon the ground, that a legal commission had been created, and .that the commissioners had a right to receive, consider and allow the claims presented ; which is the very matter in dispute. If the persons appointed commissioners were disqualified to act as such, they had no jurisdiction of the claims ; and no creditor was bound to take notice of their appointment. They constituted no tribunal to which claims could be legally presented ; and creditors forfeited no rights, by neglecting to recognise them. Smith & Sherman, therefore, remained entitled to the same privileges of objection and appeal as the other creditors of the insolvent. Besides this, they aver themselves to be creditors in their application to the court of probate ; and that they are so, is a fact found by the superior court. Being creditors of the insolvent, they had an equal interest with all the other creditors in the estate assigned ; and could be aggrieved, by the decrees of the court of probate.

2. It, is again claimed, that the decision of the superior court reversing the decree of the court of probate of May 8th, 1837, appointing the commissioners, was erroneous, because no appeal was taken from that decree to the then next term of the superior court, although the appellants had legal notice, Waiving the question, whether this objection can be properly made, in this manner, and without other averments and pleadings than appear on this record, we think it cannot prevail, for other reasons. If the persons appointed by this decree to be commissioners, were disqualified, and therefore, the decree appointing them be erroneous, and if, by reason of this, all the subsequent proceedings and decrees have been irregular and erroneous, we can see no propriety in permitting this decree to stand unreversed on the records, which contains within itself the original infirmity, by which all the subsequent irregularities and errors have been occasioned. If this decree is to stand unreversed, it must be because we consider it to be yet operative ; and if it is so, it is very certain it must again produce the same erroneous proceedings, which have been once reversed ; and that no progress can ever be made in the settlement of this estate. The truth is, that the reversal of the subsequent decrees has been predicated entirely upon the principle that this first decree, appointing the commissioners, was erroneous or inoperative, by reason of the fact subsequently discovered, that such commissioners were legally disqualified : and a re» versal of the latter decrees involves in it a disregard, if not a virtual reversal of the first; and without such reversal, the record would present an incongruity. It was the duty, therefore, of the superior court, in reversing the decrees of the 9th of January and 19th of June, 1838, to reverse this decree also, although not appealed from in time, if for no other reason than to give consistency to the entire record, and that it be made conformable to the principles adopted. A proceeding very much like the present, wherein this course was adopted, has been had in the state of New-York. By a statute of that state, relative to proceedings in chancery, it was provided, that all appeals from orders of the court of chancery, except those from final decrees, should be made within fifteen days after making the order or decree. In the case of LeGuen v. Governeur & Kemble, 1 Johns. Cas. 498. and in the case of Jaques v. Methodist Episcopal Church, 17 Johns. Rep. 548. on a review before the court for the correction of errors, of a final decree of the chancellor upon appeal, it was claimed, that it was incompetent for the court of errors to look back into the grounds of the several precedent decrees which had been made in the cause, and which had not been appealed from within fifteen days. This claim was not admitted ; and Radcliff, J. in reference to this subject, in the case first cited, says: “ It may frequently become indispensable to reverse, alter or modify the previous proceedings, in order to make them consistent with the decree here to be pronounced.”

Besides, if the judge of probate could and ought, by his own act, to have disregarded or rescinded this appointment, upon being properly informed of the facts which rendered it inoperative, it is certain the plaintiffs in error cannot complain that it has been reversed by the superior court. We intimated, in the case of Sturges v. Peck, 12 Conn. Rep. 139., that such a procedure by the court of probate, would have been proper; and we cannot discover any objection to such a course. We do not mean by this to say, that this appointment was void ah initio; because as the court of probate had jurisdiction of the subject matter, it had a right to make the decree appointing commissioners ; but the decree was necessarily ineffectual, by reason of facts then existing and subsequently discovered. Suppose a court of law should appoint an auditor, or a court of chancery should appoint a committee, and it should be as certained, that such auditor or committee was dead, absent or otherwise disqualified, when the appointment was made ; would it not be competent for such court, upon proper suggestions, to make a new appointment, without waiting for its order to be reversed, by a superior tribunal ? In courts where proceedings are had upon motion, nothing is more frequent, than if a judgment has been irregularly obtained, for the same court to set it aside upon motion. 1 Sellon’s Pr. 345. Tidd 499. 11 Petersdorf’s Abr. 486. In Packman’s case, 6 Co. 19. the ordinary had revoked an administration, which had been granted to a stranger, and granted a new administration to the next of kin. In Allen v. Dundas, 3 Term Rep. 125. probate of a forged will had been obtained in the prerogative court of the archbishop of Canterbury, and afterwards the same court revoked that probate, and declared it null and void. In neither of the cases cited was the original act of the court considered as void ab initio, because, as in the present case, it had jurisdiction. But that courts of probate, for various causes, may revoke or set aside their own acts, especially if done under a mistake of facts, or if procured by misrepresentation or fraud, was conceded in the following cases. Semine v. Semine, 2 Lev. 90. Wooley v. Clark., 5 Barn. & Ald. 744. Vide also Bac. Abr. tit. Executor D. 12. and the cases there cited. Toller 71. If therefore, it was the duty of the court of probate, upon the application of Smith & Sherman, to have revoked the appointment of the commissioners, and to have made a new appointment, the decree of that court rejecting the application, was erroneous, and was properly reversed, by the superior court.

3. This leaves the chief and the original question in this case, unembarrassed for our consideration. Were either or all of the persons appointed as commissioners so related to the creditors of the estate of the insolvent, as by law to be disqualified to act as such ?

It appears from the report of the commissioners, and it is found true, by the superior court, that the New-Haven Bank and the New-Haven County Bank were creditors of the insolvent, whose claims were allowed ; and it is also found, that the father of the said Townsend, one of the commissioners, was a stockholder in the New-Haven Bank; and that the said Fitzgerald, another of said commissioners, was a tenant of another stockholder of said bank : and that the said Durrie, another commissioner, was a tenant of one of the stockholders-of the New Haven County Bank. If the relationship of a judge or commissioner to one of the creditors be as near as that of parent and child, or landlord and tenant, such judge or commissioner is by law disqualified. Stat. 111. (ed. 1835.) Stoddard v. Moulthrop, 9 Conn. Rep. 502. Peck v. Sturges, 11 Conn. Rep. 420. 12 Conn. Rep. 139. If, therefore, the stockholders of these banks, between whom and these commissioners this relationship existed, are to be considered as the real parties or creditors, rather than the corporations in their corporate capacities, as this is a question of jurisdiction, these commissioners were disqualified to act, and had no jurisdiction of the claims of any of the creditors of this estate. This point we have just decided, during our preseut term in this county, in the case of Wood v. Hartford Fire Insurance Company, ante, 202.; and we held, in that case, that for the purpose of determining the question of jurisdiction, the individual members or stockholders of a corporation must be regarded substantially and essentially as the party. This principle we consider as imperative upon us, in the piesent case ; and the consequence is, that there is nothing erroneous in the judgment of the superior court.

In this opinion the other Judges concurred.

Judgment affirmed.