Weber v. Naltner

The motion herein filed must be granted on the ground that the matters presented by said' answer and petition have been once before-presented to the court by said Burton on a motion made at least in open court and were determined by a hearing on the evidence before his Honor Judge Jackson. The plea presented by this answering defendant that he was not formally made a party defendant herein, and that he now wishes to have this answer and cross-petition filed so that he can make a perfect record is answered by the fact that the state of the record shows that his application was formally presented to' the court, although he was not formally made a party; that it was heard upon its merits, and was denied. Claims against a receiver, like those against the estate in receivership under the old chancery petition were presented by intervening petition. See Beach on Receivers, section 819, Alderson’s Ed. Under the code, I see no reason why they might not be presented by what is now designated a cross-petition, or *325even by motion. A motion it seems to me would be a proper method of calling the court’s attention to claims against the receiver, and asking an order on him for the payment thereof. Of course, the person interested urged to have leave to come in; but where without formal leave, the person did come in, and his application was entertained by the court, and passed upon, all of which the record shows, the very action of the court is equivalent and more than an. equivalent to a leave to come in, and especially as no objection was interposed to the informality of the application. See Myers v. Fenn, 5 Wallace, 205. My judgment is that Mr. Burton is now in this case; that he has had his claim adjudicated in this case, and that he cannot now have it even formally passed upon under a new answer and cross-petition. .

Motion granted.