S. A. Kean & Co. v. Lowe

Mr. Justice Waterman. That cases may arise in which, under the géneral powers conferred on the County Court by the Voluntary Assignment Act, claims not prosecuted within three months after publication are to be allowed to participate in dividends as if filed within that time, has been held by this court as well as by others. Suppiger v. Gruaz, 36 Ill. App. 60; Winona Paper Co. v. First Nat. Bank, 33 Ill. App. 630. We do not think, however, that the fact that a creditor neglects to prove his claim within the time limited, because he is of the opinion that 'he has security out of which he can make Ms claim without resorting to the insolvent debt- or’s court, is a sufficient reason for extending to such creditor the privilege of participating in dividends as though he had made proof within three months after publication. In the present case the creditor had full knowledge of the insolvency proceedings; his claim was ascertained and defined; yet he deliberately, from motives of supposed advantage to himself, it must be presumed, neglected to file his claim. It is, to be sure, the case that he had good reason, in the opinion of this court and the County Court, for thinking that he had, by means of his levy, acquired upon the property of the insolvents a lien superior to that of their assignee. This was a mistake of law, on account of which, as a rule, relief is not given. The fact that he had made a levy upon property sufficient to satisfy his claim, and that such levy is a sub modo satisfaction, did not deprive him of his right to exhibit his claim in the court, and before the tribunal to which his debtor had invited him to go for the purpose of receiving the proper proportion of the assets applicable for distribution to creditors. It is because he ought not to unnecessarily harass or annoy his debtor, that one who has a sub modo satisfaction by levy, upon sufficient personal property, is not, while such satisfaction, is existing, permitted to arrest or bring suit against such debtor; but it can not be considered an annoyance of a debtor, to, in accordance with the debtor’s express invitation and the direct permission of the statute, file a claim in insolvency proceedings. The design of the statute is to have all creditors exhibit their claims within a short a,nd limited time in order that the assets may be speedily distributed among those to whom they of right belong. If a creditor deliberately neglects to avail himself of the opportunity thus afforded to him, he must take the consequences which the statute declares are to rest upon him in such case. The judgment of the County Court is affirmed. Judgment affirmed.