In re Cook

| N.D. Ga. | May 3, 1924

SIBFFY, District Judge.

Cook was adjudged a bankrupt January 10, 1922. At the May term, 1923, o£ this court judgment was recovered against Fa Grange Banicing & Trust Company for a large payment made it by the bankrupt as a voidable preference. On August 18, 1923, within 60 days after payment of the judgment, but more than 60 days after its rendition, the bank sought to prove its debt, which was, by the recovery, left unpaid., The claim was disallowed, as barred by Bankruptcy Act, § 57n (Comp. St. § 9641). That the claim was provable under section 57g, though the preference was not surrendered voluntarily, is settled by Keppel v. Tiffin, 197 U.S. 356" court="SCOTUS" date_filed="1905-04-03" href="https://app.midpage.ai/document/keppel-v-tiffin-savings-bank-96256?utm_source=webapp" opinion_id="96256">197 U. S. 356, 25 Sup. Ct. 443, 49 L. Ed. 790" court="SCOTUS" date_filed="1905-04-03" href="https://app.midpage.ai/document/keppel-v-tiffin-savings-bank-96256?utm_source=webapp" opinion_id="96256">49 L. Ed. 790. That the judgment might have been molded so as to allow the dividend, if ascertainable, to be deducted from the'recovery of the preference, was decided in Page v. Rogers, 211 U.S. 575" court="SCOTUS" date_filed="1909-01-04" href="https://app.midpage.ai/document/page-v-rogers-96928?utm_source=webapp" opinion_id="96928">211 U. S. 575, 29 Sup. Ct. 159, 53 L. Ed. 332" court="SCOTUS" date_filed="1909-01-04" href="https://app.midpage.ai/document/page-v-rogers-96928?utm_source=webapp" opinion_id="96928">53 L. Ed. 332. This was not. attempted, but the full preference was repaid, and the full claim offered for proof.

The amount of a provable debt,may be in such contest as to .require litigation to ascertain it. Such litigation is in effect that attacking the payment of a voidable preference; also' the value of securities may be ascertained' by litigation for deduction under section 57h. Under section lib (Comp. St. § 9595) a provable debt in suit against a bankrupt may be ordered defended by the trustee to liquidate it. But a liquidated debt must, in every instance, be finally proved in order to receive a dividend. Section 65 (Comp. St. § 9649). 7The allowance of all allowable debts is dealt with in section 57n (Comp. St. § 9641), and all are covered by the limitation with which the section closes:

•‘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 time, then within sixty days after the rendition of such judgment.”

“To liquidate a claim is to determine by agreement or litigation the precise amount of it.” Webster’s International Dictionary; Bouvier’s Law Dictionary. •

That litigation to recover a preference is a liquidation by litigation has often been recognized for the purpose of allowing proof after 12 months from adjudication. Collier on Bankruptcy (13th Ed.) 1184, and cases cited. It must equally follow that the proof must be filed within 60 days of the rendition of the judgment which terminates the litigation. The time of its payment is immaterial. Payment might be suffered to be postponed to allow credit for the dividend. But -the limitation on the proof of the claim is positive and absolute. Bickmore Shoe Co. (D. C.) 263 F. 926" court="N.D. Ga." date_filed="1920-01-22" href="https://app.midpage.ai/document/in-re-bickmore-shoe-co-8815321?utm_source=webapp" opinion_id="8815321">263 Fed. 926.

The referee’s judgment is affirmed.