94 F. 353 | S.D.N.Y. | 1899
Pending the taking of testimony before the referee upon specifications in opposition to the discharge of the bankrupt, a motion was made to expunge a proof of claim made by Brown Bros. & Co., a Arm creditor of the bankrupt, stated in the schedules. The motion was granted by the referee, whose decision thereon has been brought before me for review. The claim proved, is a judgment recovered in Utah on November 2, 1888, for $2,330, for debt and costs, upon a demand for goods, sold and delivered to the bankrupt at Halt Lake City, where he then resided. The firm creditor was located and did business at San Francisco, where the holders of the claim still reside. By the statute of limitations of Utah, no action can be brought upon any judgment recovered in any state or territory after the lapse of five years. 2 Comp. Laws 1888, p. 224, §§ 3141, 3142. The same limitation of five years is prescribed by section 386 of the Code of Civil Procedure of California. The bank
“Where a cause of action * * * accrues against a person who is not then a resident of the state, an action cannot he brought thereon in a court of the state against him or his personal representative, after the expiration of the time limited b.v the laws of his residence for bringing a like action, except by a resident of the state, * * * (1) where the cause of action originally accrued in favor of a resident of the state; or (2) where before the expiration of the time so limited, the person, in whose favor it originally accrued, was or became a resident of the state; or the cause of action was assigned to, and thereafter continuously owned by, a resident of the state.”
From tbe above provisions it is evident that at tbe time tbe petition in bankruptcy was filed, tbe claim of these creditors was barred by tbe statutes of limitation, not only in tbe states of Utah and California where the parties then resided, and where the judgment was obtained, but also-in this state. Many, if not all, of the states have provisions similar to that of section 390 of tbe Code of this state above cited; and tbe principle of such statutes as statutes of repose, interstate comity and tbe public convenience, required tbe general application of that rule. By the federal law the state statute of limitation is ordinarily applied in legal proceedings arising within tbe state. Notwithstanding tbe decision in tbe case of In re Ray, 1 N. B. R. 203, Fed. Cas. No. 11,589, I think tbe weight of authority and of sound reason requires the claim to be expunged (In re Cornwall, 9 Blatchf. 114, 126, 137, 138, 6 N. B. R. 305, Fed. Cas. No. 3,250, and cases there cited; In re Noesen, 12 N. B. R. 422, Fed. Cas. No. 10,288; In re Kingsley, 1 N. B. R. 329, Fed. Cas. No. 7,819; In re Harden, 1 N. B. R. 395, Fed. Cas. No. 6,048), and tbe decision of the referee is therefore sustained.
Tbe insertion of this debt in tbe schedules of tbe bankrupt was no revival of tbe claim. Tbe rights of other creditors to the assets, if there are any assets, could not be thus prejudiced.