Armstrong v. Wagner's, Ex'x

• Decision Date: 11 December 1897
• Citation: 43 S.W. 478
• Parties: ARMSTRONG v. WAGNER'S EX'X.
• Court: Kentucky Court of Appeals

43 S.W. 478

ARMSTRONG v. WAGNER'S EX'X.

Court of Appeals of Kentucky.

December 11, 1897

Appeal from circuit court, Campbell county.

"Not to be officially reported."

Action by the executrix of Adam Wagner, Jr., against David Armstrong, receiver, and others. From a judgment in favor of plaintiff, defendant David Armstrong appeals. Affirmed.

W. H Mackey, for appellant.

William Lindsay and Geo. Washington, for appellee.

LEWIS C.J.

In an action instituted by Adam Wagner, assignee of the Swift Iron & Steel Works, against the creditors of that corporation, a judgment was rendered against Wagner for misappropriation of the funds of the assigned estate to the amount of about $88,000. Pending an appeal from that judgment (which was however, not superseded), his house and lot were sold, under execution thereon, for $4,100; but the judgment was reversed by this court (26 S.W. 720), the effect of which reversal was to reduce the sum adjudged to about $13,000. Upon the filing of the mandate in the lower court, in January, 1895, Wagner moved that the proceeds of the sale of his property, which had gone into the general fund of the estate of the insolvent corporation, be paid back to him, which was overruled. Subsequently, and after his death, his executors, in June 1895, renewed the motion, which was then sustained; and from that order David Armstrong, receiver of the Fidelity National Bank, one of the creditors of the Swift Iron & Steel Works prosecutes this appeal.

It appears that after the judgment was rendered against Wagner and pending the appeal therefrom in this court, there was a judgment affecting the two sureties on Wagner's bond as assignee of the Swift Iron & Steel Works. That judgment is as follows: "It is further adjudged, by consent of all the parties to these consolidated cases, that the full and only liability of H. A. Shriver and Agnes Wiedeman, executrix of George Wiedeman, deceased, to any and all parties to these cases, by reason of said H. A. Shriver and said George Wiedeman having been sureties for Adam Wagner on his said bond as assignee of the Swift Iron & Steel Works, is $25,000; and it is adjudged that said H. A. Shriver and Agnes Wiedeman, executrix as aforesaid, pay to said special master herein, in full satisfaction of all liability on said bond, the sum of $25,000, and, when said payment shall have been made, said bond shall be canceled. But this decree shall be without...