Mr. Justice McBride
delivered the opinion of the court.
1. The method of procedure adpoted by petitioner is in the main correct. There was no necessity for an order permitting him to intervene, because, as a creditor whose claim had been proved and accepted, he was already in court, and in a position to litigate any right or supposed right that he had in the premises. The receiver was the mere agent and officer of the court, and subject to its direction, and for any abuse or misuse of his delegated authority the orderly remedy was to petition the court, [554]*554as was done in the case at bar, pointing out the abuse and asking that it be corrected.
2. In examining into the merits of such petition, the court would naturally be required to take cognizance of all that had been done by it in the case, and having before it all the record, would decide whether there existed proper grounds for the relief demanded. As that record has not been brought here, we are unable to say whether or not the court abused its discretion in dismissing the proceeding.
3. The petition fails to. state facts entitling petitioner to the relief demanded. It questions the authority of the receiver and the court to enter into the contract with the German American Bank, but petitioner, having been a party to that contract, is not in a position in this proceeding to question its validity.
4. Neither does the petition state facts sufficient to show any fraud on the part of Wilde or Devlin. It states that they represented to the petitioner that certain bonds were as good as money, and that he would get his money sooner by entering into the contract to take a part of it in bonds than by waiting for liquidation of the insolvent bank. He states that he afterwards discovered these representations to be false or untrue, but does not state that Wilde or Devlin knew them to have been untrue when they made them, or that they were made with intent to deceive him, or that his facilities for ascertaining their value were not as good as theirs, or that, these representations were anything except mere opinions. He alleges that he has repeatedly demanded the money due him by virtue of the provisions of the contract, but does not allege that he has ever offered to perform the whole contract by accepting the bonds. He demands to be paid in full in cash when it appears that there are several thousand depositors who, so far as it appears, are as justly entitled to be paid as himself, and makes no showing as to how such a payment would affect them.
[555]*555In the absence of the complete record of the circuit court in regard to the financial condition of the insolvent estate, and in view of the fact that the petitioner has stood by for more than three years and allowed the liquidation of the insolvent estate to proceed without interposing any objection, we decline to say that the circuit court abused its discretion in dismissing his petition.
The decree is affirmed. AFFIRMED.
Free access — add to your briefcase to read the full text and ask questions with AI