Howard v. Charles J. Cassidy Co. ( 1914 )

Mr. Chief Justice Siiepard

delivered the opinion of the Court.

The brief of the appellant makes the following statement: “The sole question in this cause is, Did the court below have power to enter a decree final and absolute in its effect, upon a rule to show cause when the subject-matter of the cause was pending for a hearing upon the merits ?”

We fail to perceive a foundation for this alleged error. There was no reason why Howard should be made a party to the original bill for the appointment of a receiver. The corporation was the only necessary party. It is true that the inquiry into the assets of the corporation had been referred to the auditor before the supplemental bill against Howard had been filed, but it is not true that the auditor’s report had then been made. It also appears that Howard entered his appearance before the auditor on December 24, 1912, and participated in the several hearings had thereafter, namely, December 31, 1912, February 6, and February 13, 1913. His answer to tbe rule to - show cause had been filed December 17, 1912; and he answered the supplemental bill February 11, 1913. The auditor’s report was not filed until March 10, 1913. The only objection made in his answer to the first rule to show cause was that the court was without jurisdiction to appoint a receiver; but no facts were alleged upon which that objection was founded. It seems that his only objection is that he was not a party to that application. Why he should have been made a party to it does not appear. The corporation was the only necessary party. He filed no exception to the auditor’s report, and it was confirmed, but no decree was then entered thereon against him.

On May 6, 1913, he was cited to show cause why a decree should not be entered against him in accordance with said con* firmed report. It is true that the proceeding referring the whole matter to hearing by the auditor was irregular in that the court' should have heard the evidence and laid down the principles for the guidance of the auditor in making his report and account. Easter v. Ralston, 32 App. D. C. 12, 19. But the respondent, Howard, made no objection to the reference that had been made and appeared before the auditor at each hearing. He took no exception to the report when presented to the court. In his return to the first rule to show cause he raised again the question of the validity of the receiver’s appointment, as we have seen, and as to the determination of his liability for moneys received from the corporation expressly submitted himself to the judgment of the court. There is no irregularity in the proceeding of which he. can now complain.

The decree is right, and will be affirmed, with costs.

Affirmed.