Commonwealth ex rel. v. Union Cas. Ins. Co. (No. 2)

Opinion by Mr. Justice Schaerer, We have set forth in the opinion in the preceding case (DeHaven’s Appeal) sufficient facts connected with the liquidation of the Union Casualty Insurance Company to make clear the situation existing in this proceeding.

Appellants filed a petition in the Common Pleas of Dauphin County on December 26, 1924, praying that the account of the liquidator, then before the court for confirmation, be referred back to Mm, with directions to proceed further with certain litigation to collect alleged assets belonging to the insolvent corporation. This litigation was pending in the Common Pleas of Philadelphia and had beén started by a stockholder and certain creditors of the corporation. The bill in equity which they filed charged a misapplication of assets of the company by the defendants named therein. Appellants did not make their application to proceed with *14 the litigation to the liquidator but waited until Ms account was filed and tben presented their petition to the court. As has been pointed out in the preceding opinion, this was not the proper way to proceed; the application should have been made to the insurance commissioner, the statutory liquidator. No application was made nor was any exception filed with him. Under these circumstances, the court below very properly dismissed the petition and confirmed the account.

In oral argument it was stated that the insurance commissioner has a further accounting to make. If this be so there is no reason why appellants shall not renew their application to him. If he can be satisfied that further assets will be realized by proceeding with the litigation it would be his duty to do so.

The order of the court below is affirmed at appellants’ cost.