Empire Trust Co. v. Walburg , 1 Ohio Law. Abs. 722 ( 1923 )

Cushing, J.

Anthony H. Walbur g filed an aotion in the Court of Common Pleas of Butler county against the Miami Cycle & Manufacturing Company, and others, under the statute, to conserve the assets and to pay the indebtedness, on -which he was the surety. The petition recites that plaintiff is surety for the Miami Cycle & Manufacturing Company on promissory notes to the Empire Trust Company of New York, in the sum of $110,000; that the notes are past due, and that the court should take possession of the property and convert into cash sufficient of the assets to pay the debts of the corporation.

On March 3, 1922, a receiver was appointed.

The Empire Trust Company, having filed its action in the United States Court for the Southern District of Ohio against the Miami Cycle & Manufacturing Company and the. sureties on the notes, recovered a judgment by the consideration of that court on April 25, 1922.

On October 26, 1922, the Empire Trust Company was made a party defendant, with leave to plead, in the action in the Court of Common Pleas of Butler county. It filed a motion to set aside the order of May 3, 1922, appointing the receiver, and, in the alternative, to order the receiver to pay the judgment of the Empire Trust Company, in the sum, at that time, with interest, of $11,878.33. That motion was overruled May 1, 1923, and this action is. prosecuted to reverse that judgment.

The statutes of Ohio authorize a surety to bring an action, against his principal to compel the payment of the debt for which he is surety, and Section 12208, General Code, provides he may have provisional remedies in such action.

In this case, as was held in the case of Ayers v. National Lathe Company, decided by this court May 7, 1923, the appointment of the receiver in a suit by a surety was a proper remedy, and the court was authorized to make such appointment.

It was the duty of the receiver to pay the debts of the corporation according to their priority, under the order of the court. In case the receiver of a corporation fails to discharge his duties as such, the proper remedy is by motion to remove him and have another appointed in his stead.

The motion of the Empire Trust Company to set aside the appointment of the receiver was not well taken. The action of the Court of Common Pleas in overruling the motion was proper, and the appeal will be dismissed.

Decree accordingly.

Buchwalter and Hamilton, JJ., concur.