Bird v. M'Micken

Porter, J. delivered the opinion of the court. This is an action by the former curator of the estate of L. Reno, to have his account homologated, and to have a certain sum of money which he had received in that capacity, applied to the payment of a debt due by Reno, to the firm of which the plaintiff had been a member; but which is now insolvent. The petition contains a prayer, that M‘Micken, the present curator, and Oakey, syndic of the estate of A. & M. Bird, may be cited; and that notice may be given to the other creditors, and all persons interested. The court ordered the creditors and other persons interested, to be notified according to law. But no notice appears to have been given [516] to them. M‘Micken, the curator, and Oakey, were cited in the ordinary way ; but the former did not appear, and no judgment by default was taken against him. Eastern Dis'ct April, 1827. The cause was, therefore, irregularly gone into on the merits, and the judgment of homologation, was improperly rendered. If the creditors should have been notified, as the court at first ordered, the want of notification vitiates the whole of the proceedings. If the curator may, or can be considered as their representative, judgment ought not to have been rendered without issue joined, or that proceeding which the law has substituted in place of of it, judgment by default. As the case is now before us, there were no parties in the trial below, but the former curator and the syndic of the partnership of which this curator was a member. The correctness of the accounts of the plaintiff, as representative of Reno’s estate, could not be settled between them. It is, therefore, ordered, adjudged and decreed, that the judgment of the court of probates be annulled, avoided and reversed, and that cause be remanded, to be proceeded in according to law ; the appellee paying costs of this appeal. Ripley & Conrad for the appellee, Watts & Lobdell for Oakey, Preston for M‘Micken.