Sturges and others against Peck and another, 12 Conn. 139

Church, J. The appeal in this case was taken from an order of the court of probate accepting the report of commissioners upon an insolvent estate. When this case was under our consideration, on a former occasion, (11 Comí. Rep. 420.) we held, that it was competent for a court of probate to make such an order ; and of course, that it might be appealed from. The same principle had essentially been determined before, in the case of Stoddard v. Moulthrop, 9 Conn. Rep. 503. The case of Stoddard v.

Moulthrop also settled it, that a court of probate had no power to appoint a brother by marriage of a creditor of an insolvent estate, to be a commissioner thereon. And in the present case, when formerly before us, we said, that if upon the coming in of the reasons of the appeal, it should appear, that the “ objections to the report of the commissioners, go to the validity of the entire report, as being illegal or void ; then the appeal should be sustained, and the truth and sufficiency of the reasons investigated.” 11 Conn. Rep. 424.

And now it does appear, that the court of probate appointed upon the insolvent estate of Levi Taylor, Samuel Sturges to be a commissioner, who was a brother of one of the creditors of that estate; and that the court of probate accepted the report of the commissioners, the said Samuel Sturges being one. And these are the reasons why the order is appealed from. The objection goes to the entire report, and shows it to have been illegal and void.

If the court of probate had no power to appoint Samuel Sturges to be a commissioner, then he could do no act as commissioner ; and a report depending for its validity upon any official act of his, was a mere nullity, and should have been so considered and treated, by the court of probate.

It is said, that an appeal is not the proper remedy; but that notwithstanding the order of the court accepting the report, it was the duty of the court of probate, upon ascertaining the disqualification of the commissioner, to treat its own orders as void, and appoint a new commissioner, and proceed as if the appointment of Sturges had never been made. Such a procedure may have been proper; and perhaps an appeal was not in strictness necessary. A writ of error is not necessary to set aside a void judgment at common law.

And if the order in this case accepting the report of the commissioners, which ia the order appealed from, was void, and not erroneous merely,— a question not necessary now to be decided ; — yet in either of the cases now mentioned, a writ of error or appeal may be very appropriate, as they place upon the record the real truth of the case, and save the proceedings from all appearance of inconsistency : and we perceive no substantial objection to this course. We are of opinion there is no error in the judgment of the superior court. In this opinion the other Judges concurred. Judgment affirmed.