In re Peck

Second Circuit

In re Peck

168 F. 48, 93 C.C.A. 470, 1909 U.S. App. LEXIS 4426

Court of Appeals for the Second Circuit·Decided February 16, 1909·No. No. 157·Published·Cited by 12 cases

Opinion

PER CURIAM,

We think the language of section 57n, Bankr. Act July 1, 1898, c. 541, 30 Stat. 561 (U. S. Comp. St. 1901, p. 3444), is conclusive of this appeal. It reads:

“Claims shall not be proved against a bankrupt estate subsequent to one year after the adjudication or if they are liquidated by litigation and the final judgment therein is rendered within thirty days before or after the expiration of such lime, then within sixty days after the rendition of such judgment.”

The latter clause of this paragraph is somewhat ambiguous, and has been construed in cases which are relied upon by the petitioner. Such are In re Noel, 150 Fed. 89, 80 C. C. A. 43; In re Baird (D. C.) 154 Fed. 215; Keppel v. Tiffin Savings Bank, 197 U. S. 356, 25 Sup. Ct. 443, 49 L. Ed. 790. But the first clause of paragraph is unobscure and specific; it prescribes a period of limitations, and there is nothing in the act which relieves any creditor from its operation, except in the case where claims are being liquidated by litigation. Whether or not there may be exceptional cases which would not fall within the statute is a question on which we now express no opinion; but to hold that this clear and imperative provision is to be disregarded whenever a creditor may assert that he was misled because the bankrupt’s schedules stated that some particular asset was of little or no value seems to us to be legislation, not construction.

The order of the District Court is affirmed.

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PER CURIAM,

We think the language of section 57n, Bankr. Act July 1, 1898, c. 541, 30 Stat. 561 (U. S. Comp. St. 1901, p. 3444), is conclusive of this appeal. It reads:

“Claims shall not be proved against a bankrupt estate subsequent to one year after the adjudication or if they are liquidated by litigation and the final judgment therein is rendered within thirty days before or after the expiration of such lime, then within sixty days after the rendition of such judgment.”

The latter clause of this paragraph is somewhat ambiguous, and has been construed in cases which are relied upon by the petitioner. Such are In re Noel, 150 Fed. 89, 80 C. C. A. 43; In re Baird (D. C.) 154 Fed. 215; Keppel v. Tiffin Savings Bank, 197 U. S. 356, 25 Sup. Ct. 443, 49 L. Ed. 790. But the first clause of paragraph is unobscure and specific; it prescribes a period of limitations, and there is nothing in the act which relieves any creditor from its operation, except in the case where claims are being liquidated by litigation. Whether or not there may be exceptional cases which would not fall within the statute is a question on which we now express no opinion; but to hold that this clear and imperative provision is to be disregarded whenever a creditor may assert that he was misled because the bankrupt’s schedules stated that some particular asset was of little or no value seems to us to be legislation, not construction.

The order of the District Court is affirmed.

In re Peck, 168 F. 48, 93 C.C.A. 470, 1909 U.S. App. LEXIS 4426 (2d Cir. 1909).

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Opinion

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