Evans v. Claridge

KOHRSAAT, Circuit Judge (after stating the facts as above). The only matter presented to the court for its determination turns upon the construction to be placed upon the proceedings of the parties in the state courts after final judgment, wherein appellee’s claim was liquidated. Unless these may be considered steps in the liquidation by litigation of the appellee’s claim, it is evident that more than 60 days had elapsed after the claim was adjudicated in the state court when the claim was filed. . While not entirely clear, it may be conceded that it appears from the stipulation of facts that on January 26, 1909, in pursuance of a stipulation between the parties, the Supreme Court entered an order offsetting the two judgments for costs against each other, leaving a judgment for costs in appellee’s favor on that date of $119.70. Whether or not this latter order was a part of the liquidation proceedings contemplated by the statute may be doubted. Nor is it important, as we view it. Certainly, after this was done and the several amounts of the two judgments thus definitely ascertained, there remained nothing more that the state courts could do in liquidating appellee’s claim. Between themselves, they proceeded very leisurely — i. e., from January 26, 1909, to April 16, 1909 — to offset one judgment against the other and satisfy the balance due the trustee. Surely this transaction, covering the period from March 29, 1909, to April l-6„ 1909, was in no sense a part of the liquidation by litigation described in said section 57m of the statute. It was simply the negotiations of the parties, which might have been long or short, as they chose. . It never has been held that, in the absence of fraud, delays so 909 caused would avail to suspend any statute of limitation, much less the exception of section 57n aforesaid. There was no obstacle to prevent appellee’s filing his proof of claim at any time within the time fixed by the act, without avoiding his preference. True, he could not have secured its allowance until liquidated and surrender of preference, nor be permitted to vote at a meeting of the creditors. It would nevertheless be a pending claim. By making his formal proof, he would bring himself within the statutory requirement as to time. Stevens v. Nave McCord Mercantile Co., 150 Fed. 75, 80 C. C. A. 25. We are of the opinion that appellee failed to prove his claim against the bankrupt estate within the time prescribed by the act, and that it was barred and cannot be proved. The judgment of the District Court is therefore reversed, with direction to dismiss the claim.