Gray v. Perry

McCay, Judge. .This case was argued on the assumption that the judge had held the decree conclusive as to Mr. Gray. We have looked closely into the record upon this point and we do not find any such ruling. All that the judge held was that it was proper to go to the jury as evidence; the weight and effect of it he did not pronounce upon. We recognize the right of Mr. Gray to come in.- Though not strictly a creditor’s bill, the proceeding was in the nature of such a bill. The fund was in the custody of the court and the legal process of the movant could not get at it. The proper course would have been to have made Mr. Gray a party to the bill on his motion. In a rule against the receiver it would seem that the previous judgment should-be at least prima facie good. Even if Mr. Gray was a formal party he could hardly ask that the court should call upon the other parties to again go over their case. So far as Mr. Gray could show the judgment wrong we think he had a right so to do. He has not, in our judgment, done this. Mrs. Belt had a right to follow the proceeds of her money into the property in which her husband invested it. He was her trustee; the rent was a legal charge and so was the claim of the factors. Without some proof on the part of Mr. Gray that the judgment was wrong we think it ought to stand. He seems to have been notified of the filing of the bill, and ought then to have come in; he might then have put the parties on their proof. Judgment affirmed.