
    No. 741
    EMPIRE TRUST CO v. WALBURG
    Ohio Appeals, First District
    No. 206.
    Juune 18, 1923
    313. RECEIVERS.
    Duty of to pay debts according to their priority— Remedy against for failure to perform duties is by motion to remove.
    Attorneys — Maxwell & Ramsey, Jos. S. Graydo: and Shotts & Millikin, for the Empire Trust Co.. E. H. & W. B. Turner, for Walburg; B. F. Harwitz for the Miami Co.
   CUSHING, J.

Epitomized Opinion

Walburg was surety for the Miami Co. promissory notes to the Empire Trust Co. in the sum of $110,000. He filed this action under the statute against the Miami ,Co. to conserve the assets and pay the indebtedness. A receiver ■ was appointed. Shortly afterward the Empire Trust Co. recovered judgment on tho notes in the Federal Court and thereafter became a party defendant to this action, and filed a motion to set aside the order appointing the receiver, or, in the alterna tive for an order on the receiver to pay its judg ment. The motion was overruled in the Common Pleas and the Empire Trust Co. prosecuted error to this court. Held:

It was the duty of the receiver to pay the debt; of the corporation according to their priority undeil the order of the court. In case the receiver fail:] to discharge his duties as such the proper remedy] is, by motion, to remove him and have an appointed in his stead. The m'otion to set the appointment of the receiver was not well taken The order overruling the motion is affirmed.  