Walker v. Towner

DILLON, Circuit Judge. The plaintiff's petition to recover in this case was filed within two years from the date of the order of the district court to the assignee to collect the unpaid stock, but, by direction of the plaintiff’s counsel to the clerk, the writ of summons was not issued until more than two years from the date of that order had elapsed. The effect of this is conceded to be the same as if the petition had not been filed until November 1. 187(i. which is more than two years from the time when the assessment or order to collect by the bankruptcy court was made. If, under the second section of the bankrupt act as found in the Revised Statutes (section 5057), any suit for the collection of assets by an assignee in bankruptcy is barred by the two-years limitation therein prescribed, then the present action is barred, if the facts set forth in the plea are true. This is an important question, and it has been thoroughly argued by counsel. Since this case was submitted, the same question came before Mr. Justice Miller, in the Kansas circuit, at the June term, 1877, in the, case of Payson v. Coffin [Case No. 10.859], The learned justice, after argument and consideration, there held that the two-years limitation in the bankrupt act applies to suits by assignees to collect the debts and assets of the estate, as well as to suits relating to specific property. The opinion was orally pronounced, but this conclusion was regarded as the almost necessary result of the language of section 2 of the bankrupt act of 1867 [14 8 tat. 518]. particularly the words "but no suit at law or in equity shall in any case be maintainable by or against such assignee, * * * unless the same be brought within two years, from the time the cause of action accrued for or against such assignee,” which was not intended to be changed, in substance, by the Revised Statutes (sections 4979, 5057); and this-conclusion was considered to be strongly supported by the views of the supreme court in Lathrop v. Drake, 91 U. S. 516; Claflin v. Houseman, 93 U. S. 130; and Bailey v. Glover, 21 Wall. [88 U. S.] 342; and by the obvious-policy of the bankrupt act in requiring speedy settlement of estates in bankruptcy. In Bailey v. Glover, supra, Mr. Justice Miller, arguendo, observed: “To prevent this (protracted litigation and delays in closing the estate) as much as possible, congress has said to the assignee, ‘You shall commence no suit two years after the cause of action has accrued to you, nor shall you be harassed by suits when the cause of action has accrued more than two years, against you. Within that time the estate ought to be settled up, and your functions discharged, and we close the door to all litigation not commenced before it has elapsed.’ ” The decision in Payson v. Coffin, supra, has-authoritative force in this circuit, and it is needless to enforce the arguments by which it may be sustained as a sound exposition of the limitation provisions of the bankrupt act. It is true that views have been expressed by judges which might lead to a different conclusion, as in Sedgwick v. Casey [Case No. 12,610]; Smith v. Crawford [Id. 13,030]; Re Krogman [Id. 7,936]; Bachman v. Packard [Id. 709]; Stevens v. Hauser, 39 N. Y. 302; Union Canal Co. v. Woodside. 11 Pa. St. 176; Re Conant [Caso No. 3,086]. But the weight of judicial opinion is with the judgment of Mr. Justice Miller, in Payson v. Coffin. Mitchell v. Great Works Milling Co. [Id. 9,662]; Pritchard v. Chandler [Id. 11,436]; McLean v. Lafayette Bank [Id. 8,885]; Norton v. Dela Villebeuve [Id. 10,350]; Miltenberger v. Phillips [Id. 9,621]; Comegys v. McCord, 11, Ala. 932; Harris v. Collins, 13 Ala. 388; Paulding v. Lee, 20 Ala. 753; Pike v. Lowell, 32 Me. 245; Archer v. Duval, 1 Fla. 219; Lathrop v. Drake, 91 U. S. 566; Claflin v. Houseman, 93 U. S. 130; Bailey v. Glover, 21 Wall. [88 U. S.] 342. Whether any 'cause of action accrued prior to the order of July 3, 1874, it is not necessary to determine. Judgment will be entered overruling the demurrer to the plea of the statute of limitations.. Judgment accordingly.