In re Burka

• Decision Date: 24 October 1900
• Citation: 104 F. 326
• Parties: In re BURKA
• Court: U.S. District Court — Eastern District of Missouri

104 F. 326

In re BURKA

United States District Court, E.D. Missouri, Eastern Division.

October 24, 1900

F. H Sullivan, for trustee.

George Beck, for bankrupt's attorney.

ADAMS District Judge.

This case comes before the court on a petition for review of the action of the referee in allowing a claim contracted by a bankrupt after the filing of the petition for adjudication against him, and prior to the actual adjudication. The claim allowed by the referee was for legal services rendered by Alfred Bettman, an attorney at law, to the bankrupt, in matters unrelated to the bankruptcy proceedings. The question is whether such a claim, not in existence at the time the petition for adjudication was filed, is a provable demand within the meaning of the bankruptcy act. Section 63 enacts that debts of the bankrupt may be proved and allowed against his estate, which are:

(1) 'A fixed liability as evidenced by a judgment or an instrument in writing, absolutely owing, at the time of the filing of the petition against him; * * * ' (2) 'due as costs taxable against an involuntary bankrupt who was, at the time of the filing of the petition against him, plaintiff in a cause of action which would pass to the trustee and which the plaintiff declines to prosecute after notice' (3) 'founded upon 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'; (4) 'founded upon an open account or upon a contract express or implied; * * * ' (5) 'founded upon provable debts reduced to judgments after the filing of the petition. * * * '

It is observed that all these classes of provable debts, except the fourth, relate, by express terms of the statute, to such as were in existence at the time of the filing of the petition. The fact that the fourth subdivision contains no words of limitation is considered by claimant's counsel a warrant for his contention that his claim, which is founded on an open account, is provable, notwithstanding the fact that it was not in existence when the petition was filed. It is not apparent why this subdivision is inserted without words of limitation as to the time the claim should have accrued. Especially is this so when there seems to have been a studied effort to insert such words in relation to all the other provable claims. But I cannot construe this omission into a general provision for allowance of demands against the estate of a bankrupt, irrespective of the time when they accrued. If such construction be given to the statute, there would be no limitation even to such claims as existed at the date of the adjudication. The general language would cover any claims that might accrue during the pendency of the proceedings, even up to the final discharge. In the absence of express provision to the contrary, I think that debts provable under the act must be such as existed at the date of the filing of the petition. That date is one to which many general provisions are referable. For instance, it is enacted in chapter 1, Sec. 1, subd. 10, that the words 'date of bankruptcy,' time of bankruptcy,' 'commencement of proceedings,' or 'bankruptcy,' when used in the act with reference to time, 'shall mean the date when the petition is filed. ' Moreover, the conclusion reached is in clear analogy with the general rule of procedure in courts charged with the administration of trust estates. According to my observation and experience, the rights of...