Cowen v. Pennsylvania Plate Glass Co.

188 Pa. 542 | Pa. | 1898

Opinion by

Me. Justice Dean,

Every question raised by this appeal was considered and decided in the case of Cowen et al. v. Pennsylvania Plate Glass Co., 184 Pa. 1, in which this appellant was represented by counsel, and all that he urges now fully heard and considered both in the court below and here. His claim was that he had advanced to the defendant company, of which he was secretary and treasurer, the sum of $42,500, on a promise of the directors that he should be secured or preferred by a judgment lien. One judgment of $10,000 had actually been confessed before the date of the receivership, as to which amount he was preferred, and is entitled to full payment. As to the remaining $32,500, he filed a bill in equity against the company, averring the loan of the money on the promise of the directors that he should be preferred as a lien creditor, and the refusal of the company to keep its promise. He prayed for a decree on the officers to compel performance of their contract. The company filed an answer to the bill, admitting all the material facts averred. In the mean time, on petition of unsecured creditors, the court had taken possession of the property, and had appointed a receiver. On Kann’s motion, however, the court below directed a cautionary judgment to be entered in his favor, as if before the date of the receivership, and directed that $14,501.93 of the fund be impounded to await a final decree on the bill in equity. The creditors attacked the $10,000 judgment as an unlawful preference to an officer of the corporation. This Court, however, sustained that lien. The general creditors also denied the authority of the court below to direct a lien nunc pro tunc for the $32,500; in this we concurred; they further protested against tying up the large amount of money to await decree on the bill, because no facts were in dispute, the company having answered, admitting the facts. We agreed with them in this position. Taking every fact alleged by Kann to be true, he was only entitled to share pro rata with the other unsecured creditors on the fund. The case was sent back for distribution on that basis; the auditor and the court below have made distribution strictly on the lines of that decree. We now have this appeal by Kann, raising the same questions as on the former hearing; with this addition, he now attacks as unlawful certain debts or claims of George Cowen which were presented at the first audit, and were not then nor in the former argument before this court objected to. It is too late to question these claims now, after having been adjudged lawful both in the court below and here.

The substance of this appeal is in fact a reargument of the former one, and cannot be entertained. The decree of the court below is affirmed, and the appeal is dismissed at costs of appellant.