H. B. Claflin Co. v. Kelley

Mr. Justice Carter delivered the opinion of the court: The contention of appellant in this case is, that under the facts shown by its petition filed in the assignment cases in the county court it was excused from exhibiting its claims, as required by the statute, within three months from the publication of notice to creditors, and that it is not, therefore, barred by the statute from sharing equally with other creditors in the assets of the estate. Section 10 of the act concerning voluntary assignments is as follows: “That any creditor may claim debts to become due as well as debts due, but on debts not due a reasonable abatement shall be made when the same are not drawing interest; and 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.” We are wholly unable to find any grounds set up in the petition which, under the statute, could be held sufficient to excuse the appellant from the performance of the condition prescribed of filing its claim within three months from the publication of notice, upon which, by the statute, its right to share equally with other creditors in the assets of the assigned property is based. The pendency of the suit brought in the Superior Court by appellant did not in anywise interfere with the presentation of its claim to the assignee. The charge of fraudulent conspiracy between the assignee and Defrees, the president of the company, to make defense in the assumpsit suit,—the manner in-which such defense was made preventing, as the petition alleges, the appellant from obtaining judgment in time to file its claim, properly sworn to, with the assignee before the expiration of the three months,—shows no sufficient reason for the neglect or failure of appellant to present its claim within the time fixed by .the statute. The decision of this court in Suppiger v. Gruaz, 137 Ill. 216, does not support the contention of appellant. This court said in that case (p. 221): “The section of the statute relied upon by plaintiffs in error no doubt requires all who may be creditors at the time of the assignment to present their claims within three months, whether the claims may be due or not due; but the section of the statute evidently has reference to existing creditors, and not to such persons as may, in a contingency, afterwards become creditors.” The claim here in- dispute, unlike the one in the Suppiger case, was an existing claim at the time of the assignment, and nothing said in that case has any application here. See, also, Kean & Co. v. Lowe, 147 Ill. 564. The petition shows that the appellant had notice of the assignments during the same month in which they were made, and its allegation that in carrying out the alleged fraudulent scheme of the assignee no notice was mailed to appellant, would, under the showing made by this petition, be equally ineffectual. It is among other things alleged that appellant inquired of appellee and his attorney, and had examined the records, and knew that no property had come into the possession of the appellee, and that no inventory had been filed and no notice published prior to January 1, 1894, and that it was led to believe that said assignment would fail of its purpose, and to relax its vigilance. As before said, appellant knew of the assignment within the same month it was made, and filed its petition for citation against A. C. Mills & Co. to appear and be examined in respect to the extent of its property, and the matters alleged show no sufficient reason for non-compliance by appellant with the statute. The demurrer was properly sustained, and.the judgment of the Appellate Court is affirmed. Judgment affirmed.