Whelan v. Cook

Miller, J., delivered the opinion of the court : The court below dismissed the appellants’ petition praying that an order finally ratifying an auditor’s account be vacated and the trustees prohibited from distributing the fund as thereby directed. A suit was instituted for a sale of the real estate of an intestate for the purpose of partition, the heirs-at-law *being the only parties thereto. The land was sold under the decree, and the account distributed the proceeds to the heirs, and was finally ratified October nth, 1865. The appellants claiming to be simple contract creditors of the deceased, filed their present petition on the 15th of February 1866, after the order of ratification had become enrolled.

The propriety of the court’s action in dismissing this petition is the only matter before us on this appeal, and depends mainly upon the question whether the petitioners were parties to the suit at the time the account complained of was stated and ratified. If we should concede these petitioners became parties to the proceedings by their first petition of the 17th of May, 1859, ¹⁶ we have no doubt they ceased to be so upon filing their second petition of the 7th of September of the same year, and the court’s action thereon. They thereby consented and agreed m effect, that their first petition should be dismissed and the sale be at once made under the decree, provided their friend and solicitor, Mr. Keech, was appointed one of the trustees, so as to be thus placed in a position to watch over and protect their interests. This was granted them, and Mr. Keech was accordingly appointed co-trustee with Mr. Dorsey, by an order of court passed on this petition and by agreement of parties.

Thenceforth, they were dismissed as parties to the cause. No express'order dismissing their first petition was required, for such was the necessary consequence of their consent and agreement contained in their second petition and the court’s order thereon. It would be trifling with the action of the court to place any other construction upon it. Nor were they restored to the position of parties by the subsequent agreement of the 1st of April, 1863, by which Mr. Clarke was appointed trustee in place of Mr. Keech.

Instead of re-instating them as parties, the only effect of this latter agreement was to continue the arrangement under which they had been dismissed from the case. The objection to the account and the order ratifying it, based on the ground that it was stated and ratified without *notice to these petitioners, is disposed of by the fact that they were not parties to the cause and, therefore, not entitled to such notice. The objection that the order finally ratifying the sale did not contain a clause referring the case to the auditor, and that his statement of the account was, therefore, irregular, is also untenable. The practice in such cases is correctly stated in Alex.

Ch. Pr. 156, according to which this account was regularly stated and ratified. All the allegations of the petition founded upon the supposed irregularity in the order dismissing the creditors’ bill, filed by these same parties, and referred to in the auditor’s report accompanying the account are disposed of by our decision on the appeal in that case, in which it was decided that the bill was rightfully dismissed under the rule “ further proceedings.” But it has been strongly argued that the fund being still in the hands of the trustees, and under the control of the court, the order of ratification should be opened in favor of