Opinion
No. 4527.
November 1, 1933.
Walter H. Anderson, of Pocatello, Idaho, for creditor Joseph M. Murphy.
Hollister Cunningham, of Omaha, Neb., for petitioner Abigail Manning.
In Bankruptcy. Proceeding in the matter of Rodney Henry Manning, bankrupt, in which the court entered an order permitting Abigail Manning to file her claim against the bankrupt's estate after the time for filing claims had expired. On motion of Joseph M. Murphy, a creditor, for a reconsideration of such order.
Order vacated.
This matter is now before the court on the motion of Joseph M. Murphy, a creditor, for a reconsideration of the order of the court entered September 28, 1933, whereby Abigail Manning was permitted to file her claim after the time for filing claims had expired, upon the ground that there is no reason in law why the claim was not filed within time, and no evidence that the claim came into the hands of Thomas B. Hargis, the attorney for the bankrupt.
On September 28, 1933, the claimant petitioned for an order allowing her to file her claim as of a date within the six-month period required by law and annexed thereto her affidavit stating that the bankrupt was indebted to her in the sum of $2,351.24 due upon certain promissory notes; that she mailed the notes with proof of claim to the bankrupt after the adjudication, who delivered them to Thomas B. Hargis, who was then acting as attorney for the bankrupt; that he neglected to file the same, although he had informed her that it had been filed, and the first knowledge she had that the claim was not filed was on September 24, 1933, after more than six months had elapsed from and after the adjudication in bankruptcy; that the attorney Hargis has removed from Ashton, Idaho, to some unknown place in Oregon.
The objecting creditor contends that to allow the claim to be filed after the expiration of the six-month period would contravene section 57n of the Bankruptcy Act, 11 USCA § 93(n), which provides that: "Claims shall not be proved against a bankrupt estate subsequent to six months after the adjudication"; and, further, that General Order 21 (11 USCA § 53), provides: "Proofs of debt received by any trustee shall be delivered to the referee to whom the cause is referred."
The provision of the law requiring claims to be filed within six months from date of the adjudication is a statute of limitation and is mandatory and leaves no discretion to the court. In re Brill (D.C.) 52 F.2d 636; In re Richmond Hill Electrical Supply Co., Inc. (D.C.) 47 F.2d 948; In re R.B. Rose Co., Inc. (D.C.) 43 F.2d 446; In re Silk (Cloutman v. Weill et al.) 55 F.2d 917 (C.C.A.); In re Ealy et al. (D.C.) 31 F.2d 314. Remington on Bankruptcy lays down the rule to be: "Section 57(n) is an absolute termination of the court's power to allow claims that are not presented until after the expiration of one year." 2 Remington on Bankruptcy, § 872.
The statutes and authorities, without doubt, bar the filing of claims subsequent to six months after adjudication, and the court seems to have no discretion in the matter unless there was a claim filed in time and the filing of an amended claim is requested. We have here a strict provision of the statute and the holdings of the courts generally to the effect that a court of equity cannot ignore the mandatory provision of the statute and its requirements.
The case cited by counsel for petitioner of Scottsville National Bank v. Gilmer (C.C.A.) 37 F.2d 227, is where the court considered a request to file an amended claim and not an original one. The law permits the court to allow an amended claim where the facts warrant it in doing so, but not the filing of an original claim after the statutory period has lapsed.
At the time of the entering of the Order of September 28, 1933, allowing the creditor to file her claim, the court was of the impression that under the facts set forth in the petition and affidavit a court of equity had the power to permit the filing of a claim, although after the period of six months had expired, but, upon objection now being made by a creditor, and in view of the strict provision of the statute and the authorities cited, it seems that the order heretofore made was without power in the court to do so, and therefore the same must be set aside.
From what has been said the order of the court entered September 28, 1933, allowing the filing of the claim will be vacated.