| R.I. | Sep 6, 1858
The appellant claims a new trial in this case. on the ground of error of the judge, in dismissing the case for want of notice to, and citation of, the adverse party.
The appeal is from an order of the court of probate, receiving the report of commissioners upon an insolvent estate. The Revised Statutes, ch. 153, pp. 354, 355, provides, that "any *440 person aggrieved by any order, determination, or decree of any court of probate, except express provision be made to the contrary, may appeal therefrom to this court." It also provides a time within which the appeal shall be claimed, and for the giving bond to prosecute the appeal; and also provides, that the person so appealing shall, within ten days after giving bond as provided, "file his reasons of appeal in the clerk's office of the court appealed to, and shall cause the adverse party to be served with a copy thereof, and to be cited, at least ten days before the sitting of the court appealed to, that such party may be prepared to answer the same." The administrator is here the appellant. He has filed his reasons of appeal in proper time, and has caused a copy thereof to be served on the court of probate from whose order or decree the appeal is taken, and has cited the said court to answer the same. The judge, at the trial, ruled, that there was no service of a copy of the reasons of appeal upon the adverse party, nor citation of the adverse party, as the law requires; and for that cause dismissed the appeal.
The appellant contends, that the court of probate is the proper adverse party to be cited, and served with the copy; and that, therefore, his appeal was properly brought before this court. He argues, that the statute recognizes a distinction between interested parties and adverse parties; and that, in the court of probate, no one interested appeared to move the reception of the report; and, the administrator objecting to its reception, the court received it upon its own motion, and thus became the adverse party. He further argues, that if the court of probate is not the adverse party, then there is no adverse party to an appeal of this nature; that the commissioners are not parties, and the creditors, whose claims have been allowed, are not. We agree with the counsel, that the commissioners are not the adverse party; nor can we any better see how the court of probate can be a party, or why the court, from whose decree the appeal is taken, is any more an adverse party than is the court to whom the appeal is made. But it is not so clear, that the creditors whose claims have been adjudicated, are not properly to be deemed adverse parties. The commissioners' *441 report is, when received and allowed, in the nature of a judgment of court, rendered in favor of the creditors whose claims are allowed, against the estate represented by the administrator. The reception of the report is necessary in their behalf; in order to enable the court to distribute the assets in payment of their respective claims allowed. They would certainly seem to be interested parties; and if they are satisfied with the action of the commissioners, (and they are presumed to be, for if not, they have a right to appeal,) their interest would seem to be adverse to this appeal. The object of the appeal is, to set aside or suspend judgments in their favor. How is it to be determined who are adverse parties? In ordinary actions this question is answered by reference to the record. The party who moves for a decree, and the party who resists it, are usually brought on the record in antagonist positions. But this is not always so. In the original process for the commencement of actions, this question is to be determined; and in order to its determination, it is necessary to inquire who has an interest adverse to the proceeding. In the case before us, the proceeding seeks to suspend or set aside the judgments, embodied in the commissioners' report, in favor of all the creditors whose claims have been passed upon and allowed. Have they not an interest, in its nature apparently adverse, which entitles them to notice, before we undertake to suspend or set aside the judgments which they have obtained? It is true that there may be a distinction between interested and adverse parties. There may be persons interested in the estate of the intestate, whose interest is not adverse to this proceeding. To such it may not be necessary that notice should be given. But it seems to us, that creditors may have an adverse interest; and to an adverse party, the statute requires that notice shall be given.
The appellant further argues, that notice to the creditors is practically impossible, or expensive and inconvenient. It certainly is not difficult to ascertain the parties to whom notice is to be given, if the creditors are such parties, since they are all ascertained and named in the commissioners' report; but in a case where there are numerous creditors, the notice prescribed may be expensive and difficult. *442
The argument ab inconvenienti can have no weight against the positive directions of the statute. At all events, the statute requires that the adverse party shall be notified in order to sustain or prosecute the appeal; and the notice here given was not given to a party interested or adverse, or to aparty in any sense whatever.
It is unnecessary to consider the other question, whether a proceeding of the nature appealed from is a decree from which an appeal can be taken. If the appellant is not here properly now, it will avail him nothing though we should decide that he might have come here by taking another course; since the time has passed within which he could take the proper steps in order to appeal. We therefore give no opinion upon the other point raised, but overrule the motion for a new trial on the first mentioned ground.