Pittsburgh, & Steubenville Railroad Company's Appeal , 2 Grant 151 ( 1858 )

The opinion of the court was delivered by

Strong, J.

— The judgment, though recovered after the date of the assignment, established as against the assignor, not only that the sum of $4500 was due to appellants, at the date of the assignment, but that twelve per cent, interest upon that sum, from February 1st, 1853, was also due. The auditors, however, allowed a dividend only upon the principal, because as they say, “ there was not sufficient evidence before them to satisfy them that” the company “was in a condition to claim the interest.” If by this it be intended that there was not sufficient evidence that calls for the instalments of the stock subscription had been made, it is difficult to discover upon what principle a dividend was allowed upon the $4500 itself. That was no more a debt entitled to a distributive share until the calls were made, than was the twelve per cent, interest. If, then, the judgment was sufficient to establish that calls had been made for the instalments of the stock subscription, it was equally so to conclude the liability for interest upon those instalments.

But this was a question of distribution. The inquiry is not therefore, whether the assignee was privy to the judgment obtained against Larimer, after the assignment. Whether the judgment was conclusive upon the assignee or not, as to all the matters-adjudicated in it, is quite immaterial. It was conclusive upon the auditors, as well as upon the defendant. The distributees might have attacked it by showing fraud or collusion, but this was not attempted. Is then a judgment, recovered against an assignor after his assignment, primá facie evidence of the facts which it adjudicates, as against the creditors who take under the assignment ? To this there can be but one answer given, and that is an affirmative one.

As this case appeared before the auditors, therefore, the appellants were as much entitled to a dividend upon the interest on their claim, as they were to a dividend upon the principal.

The decree of the court below must, therefore, be reversed. In order, however, not to disturb the distribution already made, and delay the payment of the dividends, it is ordered and decreed that the assignee pay to the appellants, in addition to the sum decreed to them by the Court of Common Pleas, the sum of $208.90, and that he be credited with said sum in his next account.