Hignutt v. Garey

Irving, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court for Caroline County, ratifying an auditor’s report in the insolvent estate of James Hignutt, allowing a claim of the appellee. The same claim was the subject of controversy and adjudication in this Court on the appeal of the present appellee in 32nd Maryland, page 552. In that case, the insolvent debtor was the exceptant, and his assignee, James E. Hignutt, the assignor of the present appellant, was his counsel.

In that case, the right of this appellee to have one-half of the judgment against the debtor, James Hignutt, the insolvent, paid from the insolvent’s estate, was directly determined in favor of this appellee; and the contrary decision of the Circuit Court was reversed, and a new audit ordered, in which the allowance should be made in accordance with the view of this Court. To an auditor’s report made in pursuance of the directions and opinion of this Court, in that case, exceptions were filed by this appellant, claiming to be a creditor of the insolvent, (James Hignutt,) and alleging, in substance, the following reasons against the allowance of the appellee’s claim: 1, because the judgment .stood to the use of Matthew Grarey; 2, because the same was not proved according to law; and 3, because it was barred by the Statute of Limitations. The Circuit Court overruled the exceptions and ratified the audit, putting the decision on the ground, that the ¹⁹² validity of the appellee’s claim against the insolvent’s estate had been established by this Court on the former appeal. On this appeal it is insisted that because the parties are not the same as on the former appeal, that decision was not conclusive.

As against the insolvent debtor, who excepted, it is conceded the decision is binding, but as against a creditor of his estate the contention is that it is not. If this .position was fortified with proof showing that the claim was false and fraudulent as against creditors, which proof was newly discovered, or was not before the Court on the former trial, and the exceptant, as a creditor, would be injured by its allowance, there would be good ground on which to rest this appeal, and ask, that the claim should be disallowed as against this appellant. Such, however, is not the fact. The bona fides of the claim is not assailed only in so far as it is by the first reason asserted to be Matthew Garey’s and not Thomas F. Garey’s judgment.

This was distinctly settled on the former appeal, and no additional proof or light is given us on that question. The judgment was an existing judgment at the time of the application of the-insolvent, and was filed with the auditor against his estate before the same was barred by the Statute; and, under the law as laid down in Lehman’s Case, 32 Md., 225 , that objection to the allowance of the judgment was not tenable. The only remaining objection to the auditor’s report, and the allowance of one-half of this judgment to the appellee, in pursuance, as the auditor says, of the direction of this Court, is, that the judgment is not proved according to law. Ordinarily, this would be a sufficient objection to the audit and justify its rejection.

The practice of allowing claims in an auditor’s report which have not been verified by the oath of the persons preferring the same, or who by law ought to prove them, or 'which have not been established by other testimony, .cannot be counte ¹⁹³ nanced. But in this case there is some justification for the auditor in not requiring other proof, for he regarded the decision of this Court as settling the question of the validity of the judgment and amount due on it after regular contest over it. And we do not think this appellant has made a case to justify our rejection of the claim because of the lack of the proofs which ordinarily should accompany claims. The only reason for requiring such proofs is to make sure of its being a just and unpaid debt.

The debtor himself was the appellant in the former case resisting the claim, and although it seems then not to have been verified before the auditor, no exception was taken on that account, but the claim was resisted on other grounds which were adjudged against the insolvent debtor, and the claim as against him established as legitimate and unpaid. The reason for the technical requirement of formal proofs for the purpose of safety is obviated by the