Home Savings Bank v. Circuit Judge ( 1897 )

To vacate a judgment and grant a new trial.

Denied, with costs, June 7, 1897.

The judgment had been recovered against an insolvent estate on appeal from the action of commissioners on claims, and relators, as creditors of the estate, moved to vacate the same, on the ground, (1) because they were never notified of the appeal, or of the trial of said cause; (2) because the judgment was made-upon a stipulation made by the attorneys for the claimant, and the attorneys for the estate, without notice to the relators and without giving them an opportunity to contest the claim; (3) because the bond and notice were not given to the ádverse parties; (4) because said judgment, appeal and proceedings were collusive and a fraud upon the creditors.

The Supreme Court found that while the Probate Court did not require notice of the appeal to be served upon the relators, they in fact had notice thereof;, that it appears from the return that the judgment was not based upon a stipulation but upon proofs taken in open court; that the bond on appeal was given as directed by the Probate Court and to the proper parties, under How.’s, Secs. 5908-5910, and that there was no evidence of collusion.

On the hearing of the motion in the court below it was treated as a motion for leave to intervene for the purpose of making the motion.