Samuel A. Kean & Co. v. Lowe

Mr. Justice Wilkin delivered the opinion of the Court: The only question submitted for our decision is, whether, under the facts stated in the stipulation, the failure to file the claim within the time prescribed by the statute regulating the settlement of the estates of insolvent debtors in cases of voluntary assignments, should bar appellants from sharing in the general distribution of the estate with those creditors who' did comply with the statute. Section 10 of that act provides that “all creditors who shall not exhibit his, her or their claim within the term of three months from the publication of notice, as aforesaid, shall not participate in the dividends until after the payment in full of all claims presented within said term and allowed by the county court.” ‘The stipulation shows that the notice provided for in section 2 of the act, and referred to in the foregoing section, was duly given, and that the claimant had actual notice of the time for filing claims; also, that the failure to present the claim within the required time was not caused by any omission of duty on the part of the assignee, but was the' result of the voluntary election of the claimant. The only excuse or explanation that is shown for the delay'is, that the creditors chose to pursue another and different remedy, which they thought available for the collection of the debt. The statute limiting the time within which claims shall be filed, in 'order to share generally with others in the distribution of the estate, has a wise and well understood purpose. Its language is clear and explicit. It can not be seriously contended that it may be disregarded at the pleasure of the court. Cases in which the chancery jurisdiction of the county court may be invoked to extend the limitation fixed by the statute must be exceptional, and present some strong equitable ground for relief. The theory of the petition in this case, as stated by counsel, is, that “having levied upon property of the insolvent, their judgment was satisfied sub “modo, and remained so satisfied until the termination of the replevin suit brought by Larkins8 assignee, against the sheriff and Kean, to recover the lumber-levied upon, so that petitioner, during the three months following the assignee’s notice to present claims, had no claim in esse against the Larkins estate, and consequently was not in a position to file the same with the assignee. Wé do not agree with the statement in this proposition to the effect that, pending the litigation growing out of the levy upon property of the insolvent, appellants could not file their claim with the assignee. We know of no reason why they would not have had a perfect right to do so. Certainly they had a right to make the offer. The clear inference from the agreed facts is, that the assignee was not only willing that it should be presented, but invited it. They, by their attorney, “decided not to do so,” not because of any legal obstruction, but because they chose to take their “chances of collecting the full amount of the judgments.” But suppose it were true that, for the reasons stated, the claim could not be filed in compliance with the statute; who is responsible? It is well known that one of the fruitful sources of litigation in proceedings under voluntary assignment laws is the effort of creditors to gain preferences by disregarding the assignment, and pursuing independent remedies. Must it be said in every such case, when the effort fails,, the claim may be filed without reference to section 10 of the statute ? It seems too clear for argument that to require the county court to reverse its action in this ease and grant the prayer of the petition would be to render the statute nugatory. The good faith with which the independent remedy was pursued is not questioned, nor is it denied that there were reasons for the belief of counsel for appellants in that litigation that they could hold the property levied upon; but can not the same be said, generally, of efforts to avoid assignments ? We think the order of the county court was just and proper, and the judgment will be affirmed. Judgment affirmed.