Woodward v. Spurr

Morton, C. J. The assignees now contend that the Superior Court has no jurisdiction of this case, because no appeal lies to that court from an order of the judge of insolvency expunging or refusing to expunge the proof of a claim. Pub. Sts. c. 157, §§ 35, 36. This objection does not appear to have been taken in the Superior Court; but, if it is sustained, it shows that the Superior Court had no jurisdiction of the subject matter, [593] and that all its proceedings were coram non judice and void, and is therefore fatal to the appellant’s case. The statute provides for a hearing by the judge of insolvency upon all claims offered for proof, and that he “ shall allow all debts duly proved.” Pub. Sts. e. 157, §§ 26-34. Section 35 gives him authority to reexamine the proof of claims once made, and to “ alter or expunge such claim when the evidence shows that it is founded in whole or in part in fraud, illegality, or mistake.” Section 36 provides that “ a supposed creditor whose claim is wholly or in part rejected, or an assignee who is dissatisfied with the allowance of a claim, may appeal from the decision to the Superior Court.” The appellant contends that this provision is broad enough to' allow an appeal from a decision upon a motion to expunge a-, claim once proved. In view of the history of the provision, we-« are not able to give it this construction. The language is di rectly and naturally applicable to the rejection or allowance of n claim when offered for proof; and the reason is obvious. The provision is taken from the General Statutes, where it could only be applicable to the original proof of claims, as no right then existed in the Court of Insolvency to rehear and alter or expunge a claim once proved. Hall v. Marsh, 11 Allen, 563. The authority to alter or expunge claims was first given by the St. of 1880, c. 246, § 9, of which § 35, above referred to, is a reenactment, in substantially the same language. ‘For some reason, the Legislature, in the St. of 1880, did not see fit to give a right of appeal from the decision expunging or refusing to expunge a claim. If the question in this case had arisen after that statute, and before the revision of 1881, no admissible construction of the statutes would authorize us to hold that such right of appeal existed. It is clear that no change was intended to be made in the revision of 1881. It is provided in the Pub. Sts. c. 223, § 2, that “ the provisions of the Public Statutes, so far as they are the same as those of existing laws, shall be construed as a continuation of such laws and not as new enactments.” The provisions which we are considering are merely reenactments of previous provisions, and must receive the same construction, and [594] therefore cannot be held to confer a right of appeal which did not exist under such previous statutes. The result is, that the appellant had no right of appeal from, the decision of the judge of insolvency expunging her claim, and the Superior Court had no jurisdiction in the case. The proper entry in that court is Appeal dismissed.