Cole v. Bloyed

Hart, J.

(after stating the facts). Cole seeks his relief under sections 1798 to 1800 inclusive of Crawford & Moses’ Digest. He was the caretaker at the mine of the Bankers Mining Company, and that company owed him for his services.

Section 1798 of- the digest referred to provides that no preferences shall be allowed among creditors of insolvent corporations except for the wages of the laborers and employees.

Section 1799 provides that the procedure for winding up insolvent corporations shall be in the chancery court.

Section 1800 reads as follows: ‘‘Every preference obtained or sought to be obtained by any creditor of such corporation, whether by attachment, confession of judgment or otherwise, and every preference sought to be given by such corporation to any of its creditors, in contemplation of insolvency, shall be set aside by the chaneery court, and such creditor shall be required to relinquish his preference and accept his pro rata share in the distribution of the assets of such corporation; provided, no such preference shall be set aside unless complaint thereof be made within ninety days after the same is given or sought to be obtained.”

Cole waited too late to file his proceedings in the chancery court to wind up the affairs of the Bankers Mining Company as an insolvent corporation, to obtain a preference under the statute.

The section just quoted provides that every preference obtained by attachment or otherwise shall be set aside by the chancery court; provided, that no such preference shall be get aside unless complaint thereof be made within ninety days after the same is given or sought to be obtained. Cole did not comply with the statute. The preference by attachment was completed by a levy on the property of the corporation under the attachment proceedings on the 7th day of October, 1919. Cole did not file his complaint in the chancery court until March 11, 1920. This was longer than the ninety days given him under the statute, and he was barred of his relief. The decree of the chancellor was correct and must be affirmed.

After the decree against him in the chancery court was rendered, Cole filed an intervention in the attachment suit in the circuit court and set up the same state of facts as was shown in the chancery court. The circuit court correctly denied him relief there. The very identical question he sought to have adjudicated in the circuit court had already been adjudicated in the chancery court. Therefore, the judgment in the circuit court must also be affirmed.