32 Kan. 649 | Kan. | 1884
The opinion of the court -was delivered by
The facts in this case are as follows: On November 25, 1876, the Kansas Insurance Company made a voluntary assignment for the benefit of its creditors. One George S. Woodward was chosen as assignee. On March 9, 1878, a petition in quo warranto was filed in this court against the company and others, praying for a dissolution of the company, and a forfeiture of its charter and franchises, and that a
“The court having had under advisement the question whether the creditors of said insurance company who failed to prove up their claims before the late assignee, George S. Woodward, are entitled to share in the distribution of the assets of the company, or not, and duly considered the same, now decides that they are not; and it is ordered that the receiver herein in making distribution of said assets exclude all creditors who failed to prove up their claims before said assignee.”
Subsequently, and on November 19,1880, A. H. Anderson, for value, assigned his judgment to JohnB. Sutliff. On June 8, 1881, John B. Sutliff filed his answer in the case of T. Z. Woodhouse v. The Kansas Insurance Company and others, pending in the circuit court of the United States for the district of Kansas, to recover the claims of creditors against the stockholders of the company, setting up that he was the owner of said judgment obtained by A. II. Anderson against the Kansas Insurance Company, and asking that he be paid the full
The claim is objected to, upon the following grounds:
First, that, under the ruling of the court of record, February 26,1880, there has been an adjudication against the judgment rendered in favor of Anderson on October 16,1877, and therefore that John B. Sutliff is barred from again presenting the same, or from any recovery thereon; second, that, as no execution has ever been issued upon the judgment, the claimant is now without remedy; third, that, as the judgment was rendered October 16, 1877, it is now dormant, and therefore not entitled to be paid; fourth, that M. H. Insley is entitled to a preference to the moneys in the hands of the receiver, upon the claims which he holds and of which he is the owner.
All of these objections must be overruled. There has been no adjudication in this court against the Anderson judgment. The order of February 26,1880, merely decided that the creditors of' the insurance company who had not proved up their claims before George S. Woodward, as assignee, were not at that time entitled to share pro rata in the distribution of the assets of the company. In other words, the decision was to the effect that only the creditors of the insurance company who had proved up their claims-before the assignee of that company, were entitled to have their demands, which had been allowed, paid in full before the claims of any- other creditors were to be considered.
The point made as to the non-issuance of an execution is not well taken, because it appears from the evidence lately filed that on October 17,187.7, an execution was issued by the
Finally, the claims of M. H. Insley are not entitled to preference over the judgment owned by Sutliff, because in the written agreement of June 26, 1878, between M. H. Insley and Messrs. Insley, Shire & Co., and H. W. Ide as receiver, it was expressly agreed “that the claims so surrendered and to be surrendered are to be held by said receiver as satisfied claims, except that said Insley is to have the right to receive on said claims any surplus that may be in the hands of the receiver after all other valid claims and costs shall be paid in full, including the expense of receivership,” etc.
The claim, therefore, of John B. Sutliff must be allowed; and the receiver is directed to pay from the moneys in his hands the amount thereof, to wit, the sum of $1,505.65 debt,
