In re Allen

• Decision Date: 11 September 1899
• Docket Number: 2,888.
• Court: U.S. District Court — Northern District of California
• Parties: In re ALLEN.

96 F. 512

In re ALLEN.

No. 2,888.

United States District Court, N.D. California.

September 11, 1899

L. T Hatfield, for creditor.

Wm. P Johnson, for bankrupt.

DE HAVEN, District Judge.

The Sullivan Kelley Company presented its claim to the referee in the sum of $106.45 on account of costs incurred by it as plaintiff in an attachment suit pending against the bankrupt at the date of the adjudication, and commenced within four months prior to the date of filing the petition in bankruptcy, and asked that the same might be allowed and paid in full as a debt entitled to priority of payment out of the proceeds arising from the sale of the property attached. A portion of this claim-- $34.38-- was for costs which accrued prior to the filing of the petition in bankruptcy, and included storage and fees of keeper of the attached property up to that date, and the balance of $72.07 was for fees of keeper and other expenses in relation to the property subsequent thereto and prior to the qualification of the trustee. The referee disallowed that portion of the claim relating to costs, storage, and fees of keeper incurred prior to the filing of the petition in bankruptcy, and allowed only $45.07 for fees of keeper and other expenses on account of the property subsequent to that date. The ruling of the referee in relation to each portion of the claim was excepted to by the Sullivan-Kelley Company, and is now before the court for review.

1. The referee erred in refusing to allow that portion of the claim which included the costs incurred in the attachment suit prior to the filing of the petition in bankruptcy. Under subdivision 3 of section 63 of the bankruptcy act, 'a claim for taxable costs incurred in good faith by a creditor before the filing of the petition in an action to recover a provable debt' may be proved and allowed as a debt against the bankrupt, but is not entitled to priority of payment over unsecured claims. The debts entitled to priority of payment are enumerated in section 64 of the same act, and a claim for costs incurred by a creditor in attachment proceedings prior to the adjudication in bankruptcy is not included; nor is the claim for such costs a lien upon the proceeds arising from the trustee's sale of the attached property. It is true that under the laws of the state of California, the Sullivan-Kelley Company acquired a lien upon the property attached in its suit against the bankrupt for...