36 Ill. App. 60 | Ill. App. Ct. | 1890
Appellants insist the order and judgment of the Circuit Court should be reversed, for two reasons. First-Because the claim of appellee is barred by section 10 of the assignment act from participating in the assets of said estate until all other claims presented within the time provided, and allowed by the court, have been paid in full. Second. That as the property replevied was destroyed by fire during the pendency of the replevin suit, without the fault of Ryhiner & Co., their estate is not responsible for more than nominal damages.
Section 2 of the assignment act' requires assignees to give notice by publication and to send notice by mail to each creditor of whom they may be informed. Section 10 provides that “all creditors who shall not exhibit his, her or their claim within the time of three months from the publication of notice as aforesaid shall not participate in the dividends until after the payment in full of all claims presented within said time and allowed by the court.” It is doubtless true that one purpose of this act is to effect a speedy settlement of the bankrupt estate and a dividend of the assets among all the creditors without delay. Another and quite as important purpose of the act is that the assets of the bankrupt estate, so far as they shall reach, will be used to pay the just claims of all the creditors without preference or distinction, so that each creditor will receive an equal proportion the eof in liquidation of his claim. And if it does not appear from the evidence that this case presents equities and that Gruaz had sufficient reason and excuse for delaying the presentation of his claim beyond the'period limited by said section 10, the provisions thereof would apply and the claim be barred as contended for. In Dugger v. Oglesby, 99 Ill. 45, which was a suit brought against heirs, to recover for the breach of covenants of the ancestor’s deed, this court say: “ Another objection made to the recovery is that the claim was not filed against the estate of Dugger within the two years after the grant of administration. Letters of administration were taken out in 1869, and the claim now sued on was never filed against the estate. The statute provision is that all demands against an estate not exhibited to the County Court within two years from the granting of letters of administration shall be forever barred, except as to subsequently discovered estate not inventoried or accounted for by the executor or administrator. All the property, both real and personal, belonging to the estate was inventoried, so that there were no subsequently discovered assets. The eviction did. not take place until in 1874. Thus the cause of action did not in fact accrue until long and more than two years after the death of the ancestor and the granting of letters of administration and the settlement of his estate. The cause of action here is not a demand which could have been exhibited to the court, proved or allowed against the estate of Dugger any time within two years after the granting of administration on his estate, it not accruing until afterward. We are of the opinion the limitation of the statute does not apply to the case.”
On behalf of appellant it is insisted this case is not in point, because the suit was against heirs, and was not a proceeding directly against the estate on a claim filed in the County Court. But the rule and principle governing the construction to be given the provision, fixing the period within which claims must be presented, is,-we apprehend, the same in the case at bar as in the case cited. In the latter case the plaintiff had no cause of action against defendants, except as heirs. Nor has Gruaz any claim against appellants, except as assignees. But the proceeds of the assets of the ancestor’s estate in the one case, and the proceeds of the assets of the.bankrupt, estate in the other, furnish the only fund liable for the payment of the respective demands.
The excuse and reason held to be sufficient to exempt the demand in the Dugger case from the bar there set up under the limitation clause, would seem to be quite as valid and applicable in this case. And in Suppiger v. Seybt, 23 Ill. App. Ct. Reps. 468, cited by appellants, this court has said in the comments upon said section 10 of the assignment act: “ The reason of this statute is the same as that requiring creditors of deceased persons to exhibit claims within two years after the grant of letters of administration;” and further say in the same opinion : “ It may be, cases will arise in which, under the general powers conferred upon the County Court by this act, claims not presented within three months can be allowed to have the same effect as if presented within that time. This case presents no equities whatever, shows no wilful neglect on the part of the assignees, offers no excuse whatever for the delay in presenting the claim, except that no notice was mailed.” The decision in Dugger v. Oglesby, and the quotations from Suppiger v. Seybt, are particularly applicable to the facts appearing in this record. Ryhiner & Co., without a shadow of right, sued out a writ of replevin, and under it took from the sheriff all the property levied upon and taken to satisfy an execution in favor of Gruaz, and instead of holding the property to await the final determination of the replevin suit, to be then returned to the officer, if return thereof should be awarded, rented it to others, and while in their possession it was destroyed by fire. Had the property been retained and placed in the hands of the assignees, the whole of it could have been returned to the sheriff in obedience to the writ of retorno. The proceeds of the sale of all the property admitted to have been worth $4,500 would have been applied in satisfaction of the execution, and Gruaz would have been paid his debt, interest and costs. This result was defeated by the failure to return the property to the sheriff, according to the condition of the replevin bond. Hot only was appellee thus injured, but without fault or laches on his part, the final administration of the replevin suit was delayed for years, and until it was determined his claim was not in a shape to be presented and allowed as a claim against the estate of the bankrupt obligors within the time limited by section 10.
In the face of these facts, appellants insist that the delay so occasioned, whereby an earlier presentation of this claim was prevented, has, by a fair and just construction of the assignment act, deprived appellee of the right to participate equally with the other creditors in the dividends of the bankrupt estate. In view of all the facts proven we can not sustain this contention. Ample and sufficient reason and excuse is shown for not presenting the claim at an earlier period and in this state of case, under the decision and ruling of the cases cited, we hold the limitation of section 10 does not apply to said claim.
The destruction by fire of the replevied property while in the possession of the lessees of Byhiner & Co., who wrongfully sued out the writ of replevin and by virtue thereof procured the possession, did not absolve said firm from liability for the breach of the condition of their bond and failure to make return of the property when return thereof was awarded. And the amount of damages assessed for the breach was warranted by the evidence. Wells on Beplevin, sections 455, 600, 601, 602, and authorities thereunder. The order and judgment of the Circuit Court is affirmed.
Judgment affirmed.
