Opinion
Decided January 5, 1937.
CREDITORS' BILL. The above named defendant is called the defendant. The plaintiffs as creditors of other defendants claimed that they had transferred their assets to the defendant in fraud of their creditors. A master found for the plaintiffs and reported that a receiver should be appointed for the defendant, its assets liquidated, and the plaintiffs paid from the proceeds after its direct debts were paid. The defendant's motion that the report be "overruled as contrary to the law and the evidence" and the petition dismissed was objected to by the plaintiffs, and was denied. The report was thereupon adopted and a receiver appointed. Upon the liquidation of the defendant's property it appeared that the net proceeds were insufficient for the payment of the claims of its creditors and of the plaintiffs. Thereupon the plaintiffs petitioned by motion for their claims to be prorated with those to which they had been postponed. A master to whom the petition was referred ruled against them on the ground that the matter of priority of payment had been adjudicated, and the court accepted his report. In the plaintiffs' original bill, an attachment of the defendant's stock in trade was made. To the rulings of priority the plaintiffs excepted. Transferred by Burque, J.
James A. Broderick (Mr. Maurice A. Broderick orally), for the plaintiffs.
Wyman, Starr, Booth, Wadleigh Langdell (Mr. Wadleigh orally), for certain creditors of the defendant.
The acceptance of the first master's report adopted it without modification. It therefore included the order for priority which the report recommended. The plaintiffs' objection to the granting of the defendant's motion that the report be rejected as contrary to the law was equivalent to a motion for the court to adopt the report. They sought no changes in it. In legal effect requesting the adoption, they could not be aggrieved by action with which they were satisfied and to which they consented. They were bound by it and could not properly except to an order which was a part of the action. The order was thus res adjudicata and the acceptance of the second report so holding was required. The plaintiffs' subsequent motion for their claim to be added to the list of the defendant's creditors amounted to a request that the existing adjudication of priority be disregarded.
The acceptance of the first report also included by necessary implication a dissolution of the plaintiffs' attachment. The order for priority could not be otherwise enforced.
Whether the plaintiffs have lost any of their rights by accident, mistake or misfortune is a question primarily of fact and may be raised only by petition to the Superior Court. P. J., c. 342; Tierney v. New England Granite Works, 79 N.H. 166; Watkins v. Railroad, 80 N.H. 468, 471-474.
Exceptions overruled.
PAGE, J., was absent.