McMahon v. Rooney

• Citation: 53 N.W. 539,93 Mich. 390
• Court: Michigan Supreme Court
• Decision Date: 04 November 1892
• Parties: MCMAHON v. ROONEY et al.

53 N.W. 539

93 Mich. 390

MCMAHON v. ROONEY et al.

Supreme Court of Michigan

November 4, 1892

Appeal from circuit court, Lenawee county, in chancery; VICTOR H LANE, Judge.

Bill by Thomas McMahon against Anthony Rooney and Thomas J. Hiller as administrator of the estate of John Phillips, deceased, to set aside a judgment in favor of Rooney and against Hiller as such administrator. From a judgment dismissing the bill plaintiff appeals. Affirmed.

Fellows & Chandler, for appellant.

L. R. Peirson, for appellees.

DURAND J.

The bill of complaint in this cause alleges that John Phillips late of Lenawee county, died intestate on November 17, 1884, and that Thomas Hiller was legally appointed administrator of his estate shortly thereafter, and that he accepted the trust, and still acts as such; that, among other claims presented to the commissioners for allowance, the complainant presented one for $1,132, and the defendant Anthony Rooney one for $1,130; that the commissioners allowed complainant's claim in part; that complainant took an appeal to the circuit court for Lenawee county, and at the trial at the January term of said court he recovered a judgment for $700; that the administrator made a motion for a new trial, which was granted, and upon the second trial, which took place in April, 1889, he recovered a judgment for the sum of $1,105 against the estate. The claim of the defendant Anthony Rooney was allowed by the commissioners at the sum of $625, from which, and at the request of complainant, the administrator, Hiller, took an appeal to the circuit court of said county, where the decision of the commissioners was affirmed. Complainant charges that the administrator did not give the matter proper attention. That he did not appear in the circuit to contest the claim; and that the complainant, when he heard of the action of the circuit court, had his attorney make and argue a motion for a new trial, which motion was opposed by defendant Rooney. That the administrator, at the argument of this motion, refused to consent that the court grant a new trial, and thereupon, after the argument, that the court denied the motion. The bill of complaint also charges that the Rooney judgment was procured by fraud and collusion between the administrator and Rooney, and, to use the language of the bill, that "the claim upon which the said judgment is based is founded upon fraud, and nothing but fraud." The bill also charges that the estate is insolvent, and that, if the Rooney judgment is allowed to stand, the complainant will not realize more than 35 per cent. of the amount of his judgment. The bill also states that on August 11, 1890, the administrator filed his final account as such administrator with the probate court, and that the final order on the account was made on October 13, 1890. That the complainant, by his attorney, appeared, and contested the allowance of the final account of the administrator; and that on December 12, 1890, the administrator appealed from the decision of the probate court in disallowing the final account of the administrator to the circuit court for the county of Lenawee. That the matter came on to be heard in said circuit court on July 14, 1891, at which time the complainant, by his attorney, appeared, and contested the allowance of the said final account, and raised the question as to whether the court could not, in...