Sowles v. Bailey

• Decision Date: 31 January 1897
• Citation: 37 A. 751,69 Vt. 277
• Parties: SOWLES v. BAILEY, Judge.
• Court: Vermont Supreme Court

37 A. 751

69 Vt. 277

SOWLES

v. BAILEY, Judge.

Supreme Court of Vermont. Franklin.

Jan., 1897.

Petition by Albert Sowles for a writ of certiorari against Myron W. Bailey, judge. Dismissed.

E. A. Sowles, for petitioner.

H. A Burt, Wilson & Hall, and Farrington & Post, for petitionee.

ROSS, C. J. This is a petition, dated October 14, 1896, for a writ of certiorari, preferred to this court at its October general term, 1896, against Myron W. Bailey, as judge of the court of insolvency within and for the district of Franklin. The petitioner avers that proceedings in insolvency were commenced against him before the petitionee, as such judge, in 1885, and that the petitionee, as such judge, had made various decrees and orders against the petitioner down to the time of filing this petition; that the petitionee, as such judge, had no jurisdiction in the premises; and that the files and records therein of the court of insolvency are erroneous and illegal for the causes recited in and annexed to the petition. For causes of error, the petitioner avers that before and at the time of the adjudication, and ever since, the petitionee was the owner and possessor of a certain claim, debt, or account against the petitioner, which in 1889, in his own behalf,— he then being an attorney at law,— the petitionee proved, allowed, and adjudicated in the court of insolvency, whereby the petitionee was and is interested, as a creditor or otherwise, in the questions and proceedings decided and to be decided in and by the court of insolvency, and was and is interested in the event, of the cause, either by his interest in the claim, or by reason of having acted as an attorney in the proof thereof, and so became disqualified from acting in a judicial capacity, either as trior or otherwise, in the matter of the insolvency proceedings; that the petitioner on October 1 and 7, 1896, filed in the court of insolvency motions and objections to the jurisdiction of the petitionee as judge of the court of insolvency in the matters and proceedings therein against the petitioner. For these errors he prays that the writ may issue, and, on the record being certified to the court, that all judgments, orders, and decrees in the insolvency proceedings in the court of insolvency may be set aside and declared void. Upon presentation of the petition, the court issued an order to the petitionee to answer the petition, and made orders in regard to taking testimony. The answer was duly filed, and the testimony taken and filed. The testimony is voluminous. About many tilings the parties and witnesses agree. In regard to others they disagree. These facts, in substance, appear: The petitionee has been judge of probate for the district of Franklin for a good many years, and ex officio judge of the court of insolvency. In 1877 and 1878 the petitioner was administrator on the estate of C. S. Hogle, then being administered in the probate district, before the petitionee. During the years of 1877, 1878, and 1882, fees accrued in the settlement of that estate against the petitioner to the amount of $39. By the statute it was the duty of the petitioner to pay these fees to the petitionee, as judge of probate, for the benefit of the state. There are fees payable not for the benefit of the state, but it is not shown that any such are in this bill. It was the duty of the petitionee, as such judge, to account for them in his settlements with the auditor of accounts semiannually. It does not appear whether he did or did not so account for them. During all the time covered by the proceedings in insolvency the petitioner knew that these fees were due from him, as such administrator, to the petitionee, as such Judge of probate, and knew that the petitionee made proof of them against his estate in insolvency at the time they were proved, in 1889, or soon thereafter, and made no objection thereto. On the testimony of the petitionee, the petitioner expressly assented to their allowance against his estate. In March, 1884, George W. Foster, claiming to be a creditor of the petitioner, filed in the court of insolvency a petition to have the petitioner adjudged an insolvent. No action was taken on this petition until May, when the National Bank of Middlebury intervened as a petitioning creditor. The two petitions were heard together by the petitionee, acting as judge of the court of insolvency, in July, 1884. He ordered the petitions dismissed. From this order the National Bank of Middlebury appealed to the county court. In the latter court such proceedings were had that at its April term, 1886, the petitioner was adjudged to be insolvent, and the cause was remanded to the court of insolvency to be proceeded with. Thereupon, in compliance with the order of the court held by the petitionee, the petitioner filed a schedule of his debts and of his assets. These snowed that the petitioner was deeply insolvent. The first meeting of the creditors was called and holden. The petitioner assented to the debts then proved against his estate, and agreed, with those voting, upon the assignees chosen. One was his brother-in-law, and president of the National Union Bank of Swanton. The other had given certain notes for the petitioner's accommodation to the First National Bank of St. Albans, of which the petitioner had been cashier. The petitioner also had large interests in the National Union Bank of Swanton. His brother, Merritt Sowles, was president of the First National Bank of Plattsburg, in which the petitioner had an open, unsettled account. His estate was involved with the affairs of these three banks. The first two were insolvent, and then, or soon after, placed in the hands of receivers. Complications and suits arose between his estate and these banks which delayed the settlement of his estate. The assignees also brought a suit against the Burlington Savings Bank to have a mortgage annulled which the petitioner had given to the savings bank to secure a debt due it shortly before the Foster petition was filed. These suits, except that last named, were finally compromised, with the consent of the petitioner and approval of the petitionee, acting as judge of the court of insolvency. Every debt, or nearly every debt, proved against his estate, was originally proved with the petitioner's consent and approval. Since then he and his brother Merritt have moved to have the allowance of some of the debts vacated, or some portions of them, on the claim that the consent was given in ignorance of certain facts touching their validity against his estate. These claims were made...