Kelley v. Leith ( 1897 )

Mr. Justice Waterman

delivered the opinion of the Court.

The inventory of the assignee filed in the County Court, shows assets estimated to be

worth......................................$163,155.02

and liabilities amounting to.................. 58,793.84

Seventy-nine claims were filed within three months after notice given, amounting in all to.. 64,752.87

of which appellant’s claim is.................. 6,243.32

Leaving the proven uncontested claims......$ 58,509.55 being several hundred dollars less than the statement made in the inventory of the assignee.

It is urged that the order of discontinuance in this case was held to be, under such circumstances, improper in Howe v. Warren, 154 Ill. 227; Terhune v. Kean, 155 Ill. 506; Am. Exch. Bank v. Walker, 60 Ill. App. 510; Same v. Same, 164 Ill. 135; Stoddard v. Gilbert, Sheriff, 62 Ill. App. 70, is also referred to.

The language used in the cases mentioned is to be understood with reference to the causes, respectively, in which it was uttered.

In the present case it is undisputed that the intention has been and is to pay all creditors in full, those whose claims are uncontested at once, those disputed, as soon as judgment is obtained thereon.

There is no pretense that the contest of the disputed claims is not in good faith and with an honest and just purpose. x

If, as is contended, the insolvehts can not arrange to give security, after the discontinuance, upon any portion of their assets, for the purpose of obtaining money with which to pay immediately all just claims in full, but must, in order to obtain a discontinuance under such arrangement, also pay at once all, possibly, unjust claims, it is evident that for practicable purposes the section of the statute providing for a discontinuance has no existence.

From beginning to end of this assignment there has been in the conduct of the insolvents nothing that smacked of dishonesty or unfairness. Compelled, by an unfortunate' mistake of a creditor, to make an assignment, they have arranged to pay without delay all undisputed claims; leaving themselves in a condition where there is every reasonable prospect that they will pay every just claim, and yet preserve their business.

If the law, under these circumstances, dooms them to a loss of all they have, without benefiting anybody, it is unfortunate.

We do not think that the Supreme Court has held unlawful a discontinuance procured in the manner the one under consideration was obtained.

A motion to dismiss the appeal because a proper bond was not filed has been overruled and appellant permitted to file a new bond. Such action of this court is in accordance with Hammond et al. v. The People, 164 Ill. 455.

The order of the County Court is affirmed.

Mr. Justice Gary.

I can not concur. I read what the Supreme Court has said as forbidding a discontinuance in pursuance of arrangements by which the assets are trammeled after they are „ returned to the insolvents.