Maxey v. Goolsby

Ethridge, J., delivered the opinion of the court. On Suggestion of Error. The appellants constituting a number of creditors of C. A. Patton, whose estate was being conducted under guardianship proceedings, he having become a lunatic, filed their bill in the chancery court, setting up that they were creditors and that they had filed, registered, and probated their accounts against .the estate of Patton, which said accounts were made exhibits to the bill. They alleged that the first notice to creditors was given December 2, 1926, and that afterwards the estate of said Patton was declared insolvent and notice was given by publication for creditors to file’ their claims with the clerk of the chancery court by the 26th day of October, 1921, for adjudication of the same by the court; that the notice so published gave no notice that claims^ should be refiled with the clerk by that date"; that petitioners thought that their claims being on file .with the clerk, having been registered, probated, and allowed, entitled them to share in 'the said estate; that petitioners, except Maxey, then without counsel, thought their claims would be allowed and that they would be allowed to share in the estate, and that if it was necessary that their claims would then be refiled, but their claims were resisted on the ground that the said [560] claipis bad not been refiled by the 26tb day of October, 1921; that the claims of Maxey and tbe Western Hosiery Company were on file, and had been- properly registered and allowed, and that the claims of other of the complainants named in the bill had been probated, registered, and allowed but were defective in proof, which defects have been amended so as to show that the said-claims were not. usurious, and all of the claims have been filed again. It further alleged that the claims which were refiled against the estate of said Patton were so filed without the knowledge or direction of the owners of said claims. It is further charged that on information and belief that the guardian of the estate caused to be presented and allowed against the said estate a number of void claims barred by the statute of limitations, and charged' that the allowance of the claims so referred to by the court was void, and they pray for their claims to be considered refiled and registered and that they' be allowed to prove the said claims and to contest the claims which had been allowed by the chancellor under the insolvency proceedings theretofore. This bill was filed on the 15th day of April, 1922. The order of the chancellor passing upon the insolvency proceedings ahd claims was entered on the 28th day of October, 1921, which was the day fixed by the published notice for the hearing, said notice requiring the claims to be on file by the 26th day of October, 1921. The bill was demurred to and the demurrer sustained, and the chancellor granted the decree allowing an appeal to settle the principles of the cause. On the 4th day of June, 1923, the appeal was dismissed, an opinion rendered holding that the appeal would not lie from an order sustaining a demurrer, citing and relying upon Barrier v. Kelly, 81 Miss. 266, 31 So. 999. A suggestion of error was filed, and the suggestion continued during the summer adjournment, and, the Judges of Division B disagreeing, the cause was submitted to the full court in banc. The suggestion of error cites and re [561] lies on Norris v. Burnett, 108 Miss. 378, 407, 66 So. 332, 748, and a majority of the court is of the opinion that the rule announced in Norris v. Burnett is applicable and controls hei;é. Whereas the Avriter hereof is of the opinion that the said case Avas properly decided on the facts, but is not controlling here for the reason that some of the defendants ansAvered, setting up elaborate defenses in their ansAver, and still others filed pleas setting up certain defenses, Avhich plea Avas set doAvn for hearing on its sufficiency and laiv and adjudged sufficient. It is true, that the statement of the court is that the appeal may be allowed from an order sustaining a demurrer to settle the principles of the cause. In the vieAv of the Avriter section 9 of Hemingway’s Code (section 34, Code of 1906), providing for an appeal from an order overruling a demurrer by implication, prohibited an appeal from being alloAved from an. order sustaining-one. And section 10, Hemingway’s Code (section 35, Code of 1906), providing for the granting of an appeal to settle the principles of the case, contemplates the making up of the pleadings. In other Avords, when the issues are made up, if they are complicated and uncertain, the court may grant the appeal. And it would have no application to an order sustaining a demurrer, because the plaintiff would have the right to amend and entirely change the case made by the declaration. However, the opinion of the majority controls, and the rule announced in Norris v. Burnett, 108 Miss. 378-407, 66 So. 332, 748, is the law, and the suggestion of error is sustained, and the cause will be considered upon its merits. The proceeding here involved is under section 1785, Hemingway’s Code (section 2117, Code of 1906), or rather is governed by-this section, and this statute has been construed in Greener v. Neal, 61 Miss. 204, and as construed in that case the creditor must refile his claim for examination and allowance ifi the insolvency proceedings, and if he fails to refile the claim his claim will not be allowed, [562] but will only be permitted to participate in any surplus-age that .remains 'after paying in full 'those filed and allowed by the court on that hearing. This holding was also reaffirmed in Merchants’ & Farmers’ Bank v. Kelleher, 119 Miss. 232, 80 So. 697. The purpose of these statutes is to have the court pass upon the validity of the claims and to adjudge priorities, and the judgment rendered on such hearing is binding unless appealed from. In the present case no appeal was taken from the order of the chancellor allowing the .claims, and he had jurisdiction to pass upon all the questions sought to be raised in this suit, and his judgment cannot be set aside in this proceeding, the bill not making the proper case of fraud or mistake. When notices of this kind are given, the creditors must take notice thereof and comply with all the requirements of law to establish their rights. Having failed so to do, the appellants are precluded by the judgment from asserting the claims here fought to be established, and the judgment of the court below will be affirmed. Suggestion sustained and judgment affirmed.