Jenkins v. International Bank of Chicago

• Decision Date: 29 January 1883
• Citation: 27 L.Ed. 304,2 S.Ct. 1,106 U.S. 571
• Parties: JENKINS, Assignee, etc., v. INTERNATIONAL BANK OF CHICAGO and others
• Court: U.S. Supreme Court

106 U.S. 571

2 S.Ct. 1

27 L.Ed. 304

JENKINS, Assignee, etc., v. INTERNATIONAL BANK OF CHICAGO and others.

January 29, 1883.

W. T. Burgess, for plaintiff in error.

A. M. Pence and Julius Rosenthal, for defendants in error.

MILLER, J.

This is a writ of error to the supreme court of Illinois. In the course of a complicated litigation between Samuel J. Walker and his creditors, it became a question whether the International Bank, which was a party to the litigation, had a just and paramount right to certain securities held by it as collateral to debts due by him to the bank. These were promissory notes, secured by mortgage on real estate. In the progress of the case the bank filed its cross-bill, alleging that they held the notes and mortgage not only as security for the specific loan made on them at the time they were received, but for a large balance due to the bank from Walker, and praying for a decree for this balance. Walker denied this, and asserted that by reason of usury he had overpaid the bank, which was indebted to him. The result was a decree in favor of the bank, finding the amount due on the collateral notes to be $23,116.66; amount due on Walker's three principal notes to the bank, $17,092.86; and the amount due on the entire indebtedness of Walker to the bank, $172,474; and that the sum to be realized from the collaterals should be first applied on the three notes aforesaid, amounting to $17,092.76, and the remainder on the general balance due the bank.

This decree was rendered on the twenty-fifth day of April, 1878. Shortly afterwards Walker was adjudged to be a bankrupt, and Robert E. Jenkins, the plaintiff in error here, became his assignee. On March 5, 1881, he sued out a writ of error from the court of appeals for the first district of Illinois, on which this decree was reversed, and the bank having removed the case to the supreme court of the state, the decree of the court of appeals was reversed, on the ground that Jenkins, the assignee, had not brought his writ within the two years allowed to him by the bankrupt law. He brings the case to this court by writ of error to the supreme court of Illinois, in which the only question that we can consider is the correctness of the ruling of that court on that point.

Without searching the record for the precise date at which Jenkins became assignee of Walker, and as such had authority to assert his rights, it is conceded that it was more than two years prior to any movement of his to bring the decree of the circuit court of Cook county before the appellate court. The question was raised in the argument of the case, in the supreme court of Illinois whether the writ of error sued out by Jenkins from the court of appeals was the beginning of a suit, or was so far a mere continuance of the former suit that the language of the act of congress did not apply. That court held, in accordance with its own previous decisions, that a writ of error was the beginning of a new suit, and as this was a question concerning the nature and effect of a writ error in their own courts, it would seem that it is not reviewable here, or, if so, we should follow the decisions of that court on the subject. We are, however, satisfied that, within the meaning of the limitation clause of the bankrupt law, this first appearance of the assignee, more than two years after the decree of the court, and the termination of the litigation between Walker and the bank, is a suit brought by him after that time.

There remains, however, the question, mainly argued before us, whether the suit thus commenced between the assignee of Walker and the bank was one involving an adverse interest touching any property or rights of property transferable to or vested in the assignee. We can see but little reason to doubt that, so far as the controversy related to the right to the collateral securities resting on the mortgage, it was a suit touching adverse interests to property; the property being the notes, and the equitable interests in the real estate mortgaged to secure them, and the adverse claims being that coming to Jenkins as assignee of Walker, and the claim of the bank. But in that decree there was an adjudication against Walker of a debt to the bank of more than $150,000 after these collaterals had been applied in payment of the debt thus established, and this decree would be evidence, whether conclusive or not, of the right of the bank to share in the dividends of the bankrupt's estate. So that, apart from the collaterals, here was a decree for money which the assignee was interested in reversing if he came in time. We must, therefore, inquire whether, as...