13 Conn. 221 | Conn. | 1839
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
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»
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
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
In this opinion the other Judges concurred.
Judgment affirmed.