Kent v. O'Hara , 7 G. & J. 212 ( 1835 )

Buchanan, chief judge,

delivered the opinion of the court.

The case is strictly this. The defendant O’Hara, the administrator of the estate of Samuel Harrison, was appointed by the chancellor a trustee also, to sell the real estate of Harrison for the payment of his debts, whose sale being ratified, the auditor stated an account, distributing the funds in the hands of O’Hara among certain of the creditors, but omitting with others, the claim of the appellant, which had been filed in the case, and to which he objected in his report for the want of proof. That report was ratified by the chancellor, and the' rejected claims suspended until further order. After which,- the case was referred by an order to the auditor, directing him to state a final account, rejecting all claims not sufficiently'authenticated, and to which the objections before made should not be removed. Under that order, the auditor stated and reported a final account, again rejecting the claim of the appellant, for want of authentication; which was ratified by the chancellor, no exception to the account being taken.

The appellant then filed a petition, praying that the auditor might be directed to review the final account so ratified, and to state another allowing his claim, without further proof, which was dismissed by the chancellor.

And afterwards, the fund being still in the hands of O’Hara the trustee, he filed a second petition, stating that his claim ■was then sufficiently proved, exhibiting the proof, and praying that the order of ratification might be rescinded; another account stated; and his claim allowed; or that he might be permitted to except to the report of the auditor, that had been finally ratified; which petition was also dismissed by an order of the chancellor, and from that order the appeal is taken.

If the claim of the appellant had not been submitted to the chancellor, and passed upon before the funds still remaining in the hands of the trustee, &c., it would have presented a different case. Not being presumed to have a knowledge of the ex parte proceedings, he would not have been concluded by them, but would have had a right to come in for participation with the rest of the creditors. But here a knowledge of the proceedings is brought home to him; with that knowledge he had exhibited and filed his claim, but without proof to substantiate it. It had been suspended for want of sufficient proof; and under the order directing the statement of a final account, he might have had it allowed by furnishing the requisite proof to- establish it, which he neglected to do. It is not enough to say, that he had no notice of the action upon it in chancery, before the final ratification of the auditor’s report. If he had no such notice it was his own fault; he had filed it in the cause, and should have attended to it; it had been suspended for further proof, which with proper attention and due diligence, he might have furnished; it has been adjudicated upon, and finally rejected through his own negligence, and he has only himself to complain of. In dismissing the petition, the chancellor exercised a discretion, necessary to the due administration of justice in that court.

Individual cases may sometimes occur, in which the rule not to open an account, after final ratification, on the application of one whose claim had been first suspended, and ultimately rejected for want of the necessary proof to sustain it, might appear to operate harshly, and there may be cases, in which it would, and ought to be relaxed.

But as a general rule, it is a good one, to prevent vexatious delay, and an accumulation of costs, by putting claimants upon an exertion of vigilance in procuring and producing the proof required to establish their claims. A different rule would be productive of negligence, and attended with inconvenience and embarrassment. And we can perceive nothing to be complained of in the application of it to this case.

The appellant knew, or might have known with proper attention, that his claim had been suspended for the purpose of letting in proof to support it, and if he neglected to attend to it, he has himself to blame. It may be assimilated to the case of a refusal by a court of law to grant a new trial, on the application of a party, who had neglected to procure and produce the necessary proof, known to him, and within his power; which is done every day, otherwise there would be no end to litigation.

ORDER OF THE CHANCELLOR AFFIRMED.