This court is without jurisdiction over the appeal. It is from an order in a special proceeding, but the order does not affect a substantial right so as to make it appealable under section 11 of the old or section 190 of the Revised Code. The appellant had no legal right to demand an adjustment and payment of her claim at the time of the application, or to claim payment before a distribution of the assets among all the creditors of the insolvent corporation entitled to share with her. The Supreme Court, perhaps, had the power to order the receiver to pay the petitioner's claim at once, and without awaiting the presentation and liquidation of all outstanding claims and obligations of the company, or ascertaining the amount of all the debts properly chargeable upon the assets. But it was within the discretion of that court, whether to order payment of individual claims from time to time, or to order distribution of the assets among the creditors as moneys should accumulate in the hands of the receiver, or upon making the final order and decree in the proceeding. The court would necessarily require a very clear right to be established before ordering payment to one creditor in preference to all others, when the creditor was not preferred by statute. They would have to know, or be informed not only that the claim was a valid, legal demand against the corporation, but that the assets ready to be distributed were abundantly sufficient to pay all charges on the fund as well as every preferred claim, and every creditor of the same class as the claimant. The Supreme Court very properly refused the application, and their decision is not reviewable here. A large class of claimants, those holding unexpired policies, have a right to be heard before the entire assets to which they look for indemnity, claiming a *Page 225 right to share therein, are distributed and put beyond their reach. They have no standing in court upon this application, are not parties to it, and would not be bound by any judgment adverse to their claim of right. The proceeding would seem to have been instituted with a view to foreclose them without a hearing. It is true, that Mr. Barnes has submitted an elaborate and learned brief, subscribing himself as counsel for "Charles K. Foote and other policyholders," but that does not make them parties to the application, or bind them to the result, and who the "other policyholders" are, or whether Mr. Foote, or those claimed as "others" have any outstanding obligation of or risk with the corporation, or what the terms of such obligation are, does not and could not appear. Mr. Barnes' real attitude is rather that ofamicus curiæ, than counsel for any party to the litigation. The receiver is the only real contestant.
The application was made within less than three months from the appointment of the receiver, who by law had four months within which to call a general meeting of the creditors, when all accounts and demands for and against the corporation, and all its open and subsisting contracts should be ascertained and adjusted as far as might be, and the amount of moneys in the lands of the receiver declared. (Laws of 1853, chap. 463, § 11; 2 R.S., 464, § 42, id. 470, § 74.) The receiver is subject to the control of the court, and may make one or more distributions of the estate of the corporation among the creditors, the second of which, if the proceeding is under the general provisions of the statutes, must be within sixteen months after his appointment. (2 R.S., 471, § 80.) The Supreme Court has full power to direct the ascertainment and adjustment of all claims against the corporation, and may compel claimants to prove their claims, and submit them for adjudication; and if, in the final allowance or rejection of any claims, legal error is committed, the determination of that court may be reviewed upon appeal. Upon making a final decree in the proceeding against the corporation, the court must cause a just and fair distribution *Page 226 of the property of the corporation, and the proceeds thereof to be made among the fair and honest creditors of such corporation in proportion to their debts respectively. (2 R.S., 463, § 37.) The petitioners' claim has not been condemned or adjudged invalid. The court has merely said that it will not, at this time, and upon this application, order it paid in full. The order was wise and discreet, and the only order that could properly have been made.
The appeal must be dismissed.
All concur, except FOLGER, J., absent.
Appeal dismissed.