62 Md. 190 | Md. | 1884
delivered the opinion of the Court.
This appeal is from an order of the Circuit Court for Caroline County, ratifying an auditor’s report in the insolvent estate of James Hignutt, allowing a claim of the appellee. The same claim was the subject of controversy and adjudication in this Court on the appeal of the present appellee in 32nd Maryland, page 552. In that case, the insolvent debtor was the exceptant, and his assignee, James E. Hignutt, the assignor of the present appellant, was his counsel. In that case, the right of this appellee to have one-half of the judgment against the debtor, James Hignutt, the insolvent, paid from the insolvent’s estate, was directly determined in favor of this appellee; and the contrary decision of the Circuit Court was reversed, and a new audit ordered, in which the allowance should be made in accordance with the view of this Court. To an auditor’s report made in pursuance of the directions and opinion of this Court, in that case, exceptions were filed by this appellant, claiming to be a creditor of the insolvent, (James Hignutt,) and alleging, in substance, the following reasons against the allowance of the appellee’s claim: 1, because the judgment .stood to the use of Matthew Grarey; 2, because the same was not proved according to law; and 3, because it was barred by the Statute of Limitations.
The Circuit Court overruled the exceptions and ratified the audit, putting the decision on the ground, that the
If this .position was fortified with proof showing that the claim was false and fraudulent as against creditors, which proof was newly discovered, or was not before the Court on the former trial, and the exceptant, as a creditor, would be injured by its allowance, there would be good ground on which to rest this appeal, and ask, that the claim should be disallowed as against this appellant. Such, however, is not the fact. The bona fides of the claim is not assailed only in so far as it is by the first reason asserted to be Matthew Garey’s and not Thomas F. Garey’s judgment. This was distinctly settled on the former appeal, and no additional proof or light is given us on that question. The judgment was an existing judgment at the time of the application of the-insolvent, and was filed with the auditor against his estate before the same was barred by the Statute; and, under the law as laid down in Lehman’s Case, 32 Md., 225, that objection to the allowance of the judgment was not tenable. The only remaining objection to the auditor’s report, and the allowance of one-half of this judgment to the appellee, in pursuance, as the auditor says, of the direction of this Court, is, that the judgment is not proved according to law. Ordinarily, this would be a sufficient objection to the audit and justify its rejection. The practice of allowing claims in an auditor’s report which have not been verified by the oath of the persons preferring the same, or who by law ought to prove them, or 'which have not been established by other testimony, .cannot be counte
The record shows this estate has been audited piece-meal. Eight audits have been made, and yet another remains to be made on account of appellant’s claim, which has yet to be passed upon. Ho sufficient excuse appears for this practice, and we cannot forbear to express disapproval. The unnecessary multiplication of audits, increases the cost, produces delay, prevents full insight at once into the condition of an estate, and may seriously mislead. Delay in getting in the deferred payments may sometimes, in the interest of creditors, require more than one audit in order that the cash in hand may be distributed among those entitled, and interest may not be lost; but as far as practicable the equity rule in relation to audits should he applied in such case as this. This case has been eighteen years in Court and the same ought to be brought to a close on its remand without further delay.
Affirmed and remanded.