Smith v. Higinbotham

The opinion of the court was delivered by JOHNSTON, J.: This was an action by J. T. Smith to recover from Wm. P. Higinbotham $219.75, which was the [251] balance of an open deposit account in the defendant’s bank. Before this action was brought, Higinbotham made an assignment for the benefit of his creditors, and the plaintiff, Smith, joined the other creditors in electing a permanent assignee. After that time he presented his claim for the debt mentioned to the assignee, and the same was allowed. From this allowance no appeal was taken, but no part of the allowance has ever been paid. The question presented for decision is, whether, after the assignment and after such presentation and allowance, and while the estate was unsettled, Smith could maintain an action against the assignor upon the original claim. This question was decided in the affirmative in the recent case of Limbocker v. Higinbotham, 52 Kas. 696; 35 Pac. Rep. 783. Following that case, the judgment in this must be reversed, and the cause remanded, with instructions to enter judgment in favor of the plaintiff. All the Justices concurring.