White's Admr. v. White, 91 Vt. 74

91 Vt. 74 | Vt. | 1916

Watson, J.

Under the provisions of section 2821 of the Public Statutes, before the amendment mentioned below, on application of a creditor who had failed to present his claim to the commissioners to receive, examine, and adjust claims and demands presented against a deceased person, made within the time limited, the probate court, “for cause shown,” could renew the commission and allow a further time for the commissioners to examine the claim. This section was amended by No. 72, Acts of 1908, in several respects; but the only change material to the matters before us, was the dropping out of the statute the words, “for cause shown,” and inserting in lieu thereof the words, “after due hearing had thereon,” that is, on the petition. So the controlling question in this ease is: "What is the meaning of the words “due hearing,” as used in the amendment?

Those words as there used, mean a judicial examination according to the requirements of law and justice, whereof all persons interested have notice and an opportunity to be heard. See In re Allen, 82 Vt. 365, 73 Atl. 1078, 26 L. R. A. (N. S.) 232; Corliss v. Corliss, 8 Vt. 373.

In the case at bar the appellee’s petition to the probate court for a renewal of the commission, was granted by that court without any notice of the pendency of the petition to the administrator of the estate, or to any other person interested so far as appears. This was granting the petition without “due hearing” thereon, within the meaning of the statute, and the act of the probate court (it being a court of special and limited jurisdiction having statutory authority only) in this respect was without authority of law and void. Consequently the whole proceedings had before the commission under such unauthorized renewal, were coram non judice, and void. Walbridge v. Hall, 3 Vt. 114; Barrett v. Crane, 16 Vt. 246.

It is contended by the appellee that the order renewing the commission was strictly interlocutory, from which no appeal lies. This question was expressly considered, and determined in Timothy v. Farr, 42 Vt. 43. It is enough to say that, according to the ruling there made, the question of the validity of the order was properly brought before the county court by the appeal from the report of the commissioners.

Judgment affirmed. To be certified to the probate court.