Parker v. Reynolds, 32 N.J. Eq. 290

Parker v. Reynolds

32 N.J. Eq. 290 | N.J. Super. Ct. App. Div. | 1880

The Ordinary.

This is an appeal from an order of the orphans court of Essex county, directing that the respondents, the executors of Austin M. Knight, deceased, sell real estate of which he died-seized, to pay his debts. The appellants are general creditors of the testator, whose claim is not admitted by the executor, but appears to be disputed. The ground of the appeal is, that the order for sale is illegal, because it was made on a day other than that to which the hearing of the rule to show cause was adjourned. The time fixed for the hearing in the rule was May 6th, 1879. By successive weekly adjournments, the hearing was adjourned from that day to the 8th of July following, and from that day it was adjourned to the first Tuesday of September then next.

On the 15th of July, the respondents, on five days’ notice to the proctor of the appellants (who attended accordingly), applied to the court for an order to revoke the last adjournment, and to bring on.the hearing of the rule on that day,. *292which was granted, so far as the revocation was concerned, and the hearing was then fixed for the 22d day of July. On that day it took place, and the order for sale was made thereupon.

Under what circumstances a general creditor has been allowed to prosecute an appeal, see Hungerford’s Case, 1 Sah. & Lef. 409 ; Earl of Winehelsea v. tiaretty, 1 Myl. & E. 253; Pearson v. Barrington, 3$ Ala. 237, $76; Anonymous, 18 Ább. Pr. 87; Higbie v. Westlake, 11; N. ~T. 381; Glisson v. Carter, 38 Qa: 518; Willamonicz v. Strong, 8 Ark. 1;67; and where that right has been denied, Caldwell v. Einkhead, 1 B. Mon. 2$~ Phillips v. Shelton, 6 Iowa 5If} ; Henry v. Estey, 13 Gray 836. See, also, Bell v. Ayres, $1; Ind.. 92; Malone v. Gorman,. 10 La. An. 81;. Lien creditors may appeal. Watson v. Willard, 9 Pa. St. 89; Barker v. Barker, 39 N. H. 408; Jones v. Thompson, 1$ Cal. 191. See Evennan’s Appeal, 67 Pa. St. 885.—Rep.

Though the orphans court act provides that, at the time .and place mentioned for the hearing in the rule, or at such other time and place as the court may then appoint, it shall hear and adjudicate upon the matter, it cannot reasonably be insisted that it was the intention of the legislature to confine the power of postponement to a single adjournment, according to the literal terms of the act. The intention was to provide that, at the time fixed in the rule, or at such time thereafter as should be fixed by adjournment or continuance, whether one or more (and rendering further notice unnecessary), the hearing should take place. It was within the power of the court to revoke the adjournment on due notice, and to fix another day. Its action was the exercise of a power incident to its jurisdiction, and necessary for the transaction of its business..

The constitution gives aD appeal to all persons aggrieved by an order, sentence or decree of the orphans court. The *293appellants, as before stated, are general creditors of the testator. They are not “aggrieved” by the order to sell tbe testator’s land to pay his debts. Their pecuniary interest is not injuriously affected by the order for sale. No right of property of theirs is established or divested by it. Swackhamer v. Kline’s Adm’r, 10 C. E. Gr. 503. On tbe other hand, the order was obtained by and on application of their representatives, the executors. They are not parties to the proceedings which they seek to review. They have no right of appeal.

The appeal will be dismissed, with costs.