Pierson v. Trail

Tuck, J., delivered the opinion of the court. The appellee filed his ex-parte petition on the equity side of Frederick county court, alleging that he had sold the property of the insolvent, and praying that the fund might be distributed under the order and direction of that court. An order was passed declaring “that the petitioner was entitled to the relief he prayed, and directing him to bring the money into court, and that notice should be given to creditors to file their claims.” The appellant and others, creditors of Miller, filed their claims, and after various proceedings, those of the appellant were rejected, so that he was not allowed any participation in the trust fund. From the order of the court ratifying the auditor’s account, rejecting his claims, this appeal is taken. The appellant contends, that the court below could not rightfully exercise jurisdiction over the subject matter, and that all the proceedings are therefore void. On the part of the appellee it is insisted, that this objection not having been made in the court below, cannot be availed of here. The act of 1841, ch. 163, applies to defendants. The appellant was not a party to the original proceedings. He came in as a creditor, occupying the attitude of an actor, like other creditors seeking to recover their claims against the estates of insolvents, or deceased persons. As between himself and Schlosser and Fox, who were contesting his demands, and claiming a priority over him, he was not an actor; yet his relation to the ex-parte petition of the trustee was not that of a defendant. Carter vs. Dennison, 7 Gill, 157. In fact the court had assumed jurisdiction, and possessed itself of the trust fund before Pierson became a party to the proceedings; and coming in as he did, we are of opinion that he was under no obligation to present this objection in the court below. The act of 1805, ch. 110, confides to the county courts the distribution of the estates of insolvent debtors. Until the act of 1849, ch. 88, an appeal would not lie from an order [144] distributing the trust funds. Carter vs. Dennison, 7 Gill, 157. And this jurisdiction is recognised in 5 Gill, 179, Alexander vs. Ghiselin. The trustee could have obtained the protection he sought, by the action of the county court, without invoking the jurisdiction of a court of equity. We must therefore sustain the objection now made by the appellant. It would be improper in this court, in a case coming before us, as this does, to express any opinion on the several propositions argued at the bar, though requested by counsel to do so.