In re Studdart

Vanderburgh, J. The petition in this matter, upon consent of and notice to all the parties thereto, including the creditors who had been joined or brought in during the pendency thereof, was dismissed by the court on the 8th day of August, 1882. Subsequently, upon the application of other creditors not named or previously joined, an order was made by the court, joining them as parties, and vacating and setting aside the order of dismissal, and fixing a day for the hearing of the original petition, as amended, for the appointment of a receiver. From this last order this appeal is brought. [554] The order granting the application of these creditors for a hearing upon the original petition, and reinstating it, is not a final order and is not appealable. The action of the court complained of could only be reviewed upon appeal from its order granting or refusing the petition for a receiver, etc. But, in view of further proceedings in the matter, the question having been argued upon the merits, we deem it not improper to add that we are of the opinion that the action of the court in dismissing the petition was regular, and that notice under the provisions of Laws 1881, c. 148, § 5, was not required to be given to creditors of the insolvent not previously joined or known in the proceedings. Section 5 must be read in connection with section 2, and refers to such creditors as have been previously made parties, or as appear from the record to have been joined or brought before the court in pursuance of the provisions of these sections. The right of other creditors, not so made parties, to institute new proceedings in insolvency, or to proceed by action to enforce their claims, is not affected; but they have no ground upon which to base a claim to reinstate proceedings upon a petition which has been regularly dismissed. Appeal dismissed.