Twitchell v. Blaney

This is a petition in equity to review a proceeding of the court of insolvency. The creditors of an insolvent *581choosing an assignee, the judge disapproved the choice and ordered a new election. The bill alleges the decree to be unreasonable, asks to have it vacated, and prays for such other relief as the facts justify.

Should the remedy have been by an appeal from the order of the court below, instead of by bill in equity? We think not. The original insolvent act, passed in 1878, may have been broad enough to allow an appeal in a case like this. But the amendment to the act in 1879, (c. 154, § 2, Laws of 1879,) provides that an appeal shall lie only in certain specified cases, and this is not one of those cases. There is an excellent reason why an appeal should not lie in the case. It would necessarily suspend further proceeding with the insolvent estate until the appeal be passed upon by the appellate court. But, under a bill in equity, the court can apply the remedy in such form and to such extent as may be demanded by the exigencies and justice of the case. This view of the law is taken in Bassett v. Hutchinson, 9 Allen, 199, under a similar statute and similar facts. The statutes of our state allow an appeal from the appointment of an administrator by the probate court, but, to avoid embarrassments arising from such appeal, the judge may appoint a special administrator in case of an appeal, and from the latter appointment an appeal is not allowed. B. S., (1871) c. 63, § 21.

The respondents deny that this court has jurisdiction to entertain a bill in equity to review the action of a judge of insolvency in the matter of official appointments. In our opinion, the insolvent act expressly permits it. It has been virtually so decided. Harris v. Peabody, 73 Maine, 262. It should be so. There should be some redress, in extreme cases at least, against the abuse of discretionary powers by inferior tribunals. Of course, the remedy must be sparingly and cautiously applied. The action of a judge in matters of discretion, and the appointment of or the refusal to appoint a particular person as assignee comes within his discretion,— is generally conclusive. There must be palpable error and abuse of discretion to justify our' interference.

In our judgment, the facts of the present case do not justify the remedy asked for by the petitioners. The reasons given by *582the judge for his action may not have been in strictness legal ones. But we cannot say there may not be some expediency in his position. The judge had a right to regard the assignee chosen by the creditors as not fitted for the place. His discretion, not ours, governsi It is not enough to overrule the judge’s action, that this court might have acted differently upon the question. Nor does it disturb the result that he gave wrong reasons for a right action. Judge Lowell thinks, in the matter of appointments, a judge in some cases may act upon a reasonable suspicion. In re Clairmont, 1 Low. Dec. 230; Marvin v. Ins. Co. 85 N. Y. 278; Ex parte Bates, 1 De G. M. & G. 452. A satisfactory answer to the complaint of the petitioners is, that by a new election a suitable person may still be chosen assignee. It makes a difference whether the judge keeps an unsuitable person in office, or merely beeps some particular person fitted for the trust out of office. In the former case the injury and abuse may be clear, — while in the latter case the mistake, if it be one, is easily cured. In the latter case, the facts should be of an extraordinary character and urgency to warrant our supervising the action of the judge. No such occasion appears here. See Snow v. Weeks, 75 Maine, 105.

Exceptions overruled.