Eisenmann v. Thill

1 Cin. Sup. Ct. Rep. 188

• Court: Ohio Superior Court, Cincinnati
• Decided: January 15, 1871
• Status: Published

Opinion

Hagans, J.

An examination of the papers of the cause discloses the fact that the parties served with process are in default for demurrer or answer in the case of A. Thill v. N. Thill et al. Indeed, we gather that it is the desire of all the creditors that the receiver should continue in the possession of and administer the assets pro rata, as prayed for in Thill’s petition, without further, or, indeed, any objection at all. There is nothing in the record to authorize us to inquire into the sufficiency of that proceeding. The plaintiff is interested in the partnership property, and has a right to see that it goes to the payment of the partnership debts. The fact is that a receiver of this court was appointed, as we are bound to suppose, according to the record, for sufficient reason and on sufficient grounds; and he has been acting under the orders of the court at a time when these parties were bound to know what was going on,-and has not only disposed of some portions of these assets, but has incurred considerable liabilities for the common benefit. It would seem, therefore, that they are bound by his acts. He was appointed in their b'ehalf and none of them move to discharge him. In fact, the court has the custody of this property for the purposes of the action, viz: a pro rata distribution of the assets, according to the prayer of the petition, at the instance of the plaintiff, who is one of the members of this insolvent firm, and who seeks to ascertain and recover what is due to him, if he be entitled to anything. No one objects to this course, though there are priorities .among these attachments. On the contrary, there seems to be a voluntary assentto it.

The cause seems to stand, as to the propriety of this action upon the principle of Skip v. Harwood, 3 Atk. 530, and Williamson v. Wilson, 1 Bland (Md.), 418. Both of these cases were suits by one partner against another, and a receiver was appoint id to preserve the partnership property for creditors. In the first of these cases, it was held by Lord Chancellor Hardwicke that a commission of bankruptcy could not supersede a decree for a receiver, the appointment of which is a discretionary power of as great utility as that of any other authority that belongs to a court.

And, in the case in Maryland, the court held that after a firm became insolvent, the partners are to be considered as trustees for the benefit of their creditors; and, therefore, a suit between such partners, for the preservation of the assets for creditors, may be treated as a creditor’s suit, and the partnership estate collected and distributed accordingly; and a receiver was appointed to preserve the estate for equal distribution among the creditors.

Here, all the parties, even those who perhaps might claim priority by attachment, voluntarily submit to the administration of the insolvent’s estate, according to our assignment laws. The purpose of the proceedings in bankruptcy is obtained, and their further prosecution seems unnecessary.

We do not dispose of the motion to discharge the rule or the motion to dissolve the attachments; we prefer to let them stand until the final hearing, and the receiver may go on and collect these assets for distribution pro rata. And if any of the parties disturb him in the performance of his duties, or if the assignee in bankruptcy interferes with him, he may report the facts for such further action as may be appropriate in the premises.

The cause will be remanded to Special Term for further proceedings.