267 F. 893 | N.D. Ga. | 1920
Facts are stipulated as follows: First National Bank of Livonia, holding a note for a debt and interest “and all costs of collection, including 10 per cent, as attorney’s fees,” secured by a deed to land, gave 10 days’ notice in writing of intention to sue at a named term of a named state court, and filed the suit in the forenoon of September 4, 1917. At 5 :30 p. m. of same day the defendant filed his voluntary petition in bankruptcy. The bank sought to prove as a secured claim its note for principal, interest, attorney’s fees/'and court costs inctirred in the suit. The question is whether the attorney’s fees and court costs are provable.
“The filing of the petition was a caveat to all the world. It was in effect an attachment and injunction. * * * The bankrupt became, as it were, for many purposes, civiliter mortals.” i
And the assertion is repeated of the present act in Mueller v. Nugent, 184 U. S. 1, 14, 21 Sup. Ct. 927, 45 L. Ed. 711. After the filing of the bankruptcy proceeding, no creditor may perfect his inchoate right to put upon the bankrupt an attorney’s fee for the filing and conduct of a suit which he must know is unnecessary and will likely be futile. It may even be that under the quoted provision of section 63 good faith must exist when the creditor files his suit before the filing of the bankruptcy petition — that is, he must have a real purpose effectively to assert his debt against the debtor, rather than a purpose, knowing a baukrupcly to be imminent, to impose an unnecessary charge upon the bankrupt estate. No attack upon the good faith of this creditor is made, however, and good faith is to be presumed.
“When necessary to determine conflicting rights, courts of justice will tafee cognizance of the fractions of a day.”
The validity of bonds voted in aid of a railroad was upheld, though on the same day a constitutional provision was adopted prohibiting such; it being held that the latter became effective only on the closing of the polls at sunset, and it appearing that the bonds were issued that morning. The doctrine was declared settled in Taylor v. Brown, 147 U. S. 645, 13 Sup. Ct. 549, 37 L. Ed. 313. Following these cases, when it appeared,that the President signed a tariff act at 4:06 o’clock p. m., it was heldAjdiat goods imported in the forenoon of that day were not taxable under it. U. S. v. Stoddard (C. C.) 89 Fed. 699, affirmed 91 Fed. 1005, 34 C. C. A. 175, and followed in cases cited in Ellison v. U. S., 142 Fed. 732, 74 C. C. A. 64.
By General Order 2 (89 Fed. iv, 32 C. C. A. vii), the clerk is required to indorse the day and hour of the filing of the petition. This requirement shows that the hour as well as the day of filing was esteemed likely to be of importance, and such importance exists in the application of such words as “before the filing” and “after the filing,” in sections 63 and 68 (Comp. St. §§ 9647, 9652). These words do not mean the day before and after that of filing, leaving the day of filing unprovided for, but refer to the very instant of filing, if ascertainable.