Robertson v. Agricultural Bank ( 1854 )

Mr. Justice HaNDY

delivered the opinion of the court.

On the 14th May, 1849, the estate of Perry Cohea, deceased, was declared insolvent in the probate court of Hinds county, and publication was required to be made for six months, notifying all persons having claims against the estate to present them to the commissioner on or before the third Monday of November, 1849. At the December term, 1849, the time for presenting claims was ordered to be extended until the second Monday of January, 1850, which was the 14th day of that month. On the 15th day of January, the appellants, Robertson and Lane, presented their claims, and at April term, 1850, the commissioner returned his report, allowing them, and publication for four weeks was ordered and made, notifying all persons interested that it would be confirmed, unless excepted to on or before the second Monday of May, 1850. At that term exceptions were filed in behalf of the Agricultural Bank, whose claim had been allowed, against the claims of Robertson and Lane, mainly because they had not been presented in due time to the commissioner. At June term, 1850, Robertson and Lane appeared and contested the exceptions to their claims, and tendered exceptions to the claim of the Agricultural Bank; but the court refused to permit the exceptions to be filed, and sustained the exceptions filed by the Agricultural Bank and confirmed the commissioners’ amended report, disallowing the claims of Robertson and Lane, who thereupon filed bills of exceptions and took this appeal.

This is a contest between creditors of an insolvent estate, who have all treated it as having been regularly declared insolvent, and, therefore, we can look only to the proceedings subsequent to the insolvency.

The most important exception urged against the action of the court below is, that notice to claimants to present their claims was not given according to law, and in conformity to the order of the court; that the publication in the newspaper, as shown by the record, was not for six months, as required by the order, but was from 25th May to 16th November, and that no notice is shown by the record to have been posted at the court house door; that, therefore, the claims of the appellants were not affected by the publication.

It appears by the record, that although the six months had not transpired on the third Monday of November, yet that further time was allowed for the presentation of claims until the second Monday of January, by which time more than six months had elapsed, and ample opportunity was allowed the appellants to present their claims. When their claims were presented and contested, they raised no objection whatever to the regularity of the notice; and by their appearance under the notice as claimants, they must be considered as waiving any objection to it on the ground of irregularity. And in the bills of exception taken by them to the decision of the court rejecting their claims, they make no point upon the regularity of the notice, nor do they set forth the evidence upon which the court acted. Under such circumstances, they will be held to have waived any objection on account of the notice, and the presumption of law must prevail that the judgment of the court is correct.

Another objection urged is to the refusal of the court to sustain the appellant’s exception to the claim in the name of the Agricultural Bank, on the ground that the charter of that bank had been taken away.

It appears by the judgment on which this claim was founded, as it appears in the record, that it had been revived in the name of Elijah Peale, trustee of the bank, and though the name of the bank was used in the report and exceptions, the vouchers showed that it was claimed by a party capable in law of asserting it, and, for all substantial purposes, it must be regarded as the claim of Elijah Peale, trustee of the bank, for the rules of technical pleading cannot be applied in such cases.

For the same reason, we think it was not improper in the court to entertain exceptions filed nominally by that .bank, but founded on the same claim, to the allowance of the claims of the appellants. This claimant had filed his claim in due season, and was competent to take any legal step in the case necessary to protect his rights.

Let the decree be affirmed.

A petition for a reargument was filed in this case by the counsel for the appellants, but it was overruled by the court.