J. B. Orcutt Company v. Green
This case comes here upon return to a writ of certiorari, issued by this court to the circuit court of appeals of the second circuit. It is a proceeding in bankruptcy, and the question involved is one in regard to the sufficiency of the filing of certain proofs of claims against the bankrupts' estate.

The facts are these: Messrs. Ingalls Brothers were adjudicated bankrupts in proceedings in the district court of the United States for the northern district of New York on the 3d day of December, 1902. Soon thereafter one Charles Duncan was appointed trustee, and on the 19th day of December, 1902, he duly verified a proof of claim in his own behalf for $4,171, admitting an offset of $327. On the 1st of April, 1903, the J. B. Orcutt Company duly verified a proof of claim against the bankrupts' estate for $893.68, and in a short time delivered it to the trustee. At the first meeting of creditors Charles H. Dauchy Company presented to the referee a defective proof of claim against said bankrupts for $3,335.67, which was returned by the referee to said company for correction. Prior to January 23, 1903, the Dauchy Company duly verified another proof of claim in the same amount, prepared by Henry W. Smith, the attorney for the trustee, who had volunteered teered to prepare the same so as to comply with the rules, and on or about March 15, 1903, the Dauchy Company delivered this proof of claim to the trustee. Prior to June 1, 1903, the trustee delivered all three claims to said Henry W. Smith, with directions to file the same with the referee, which the attorney promised to do. In this he failed. When the attorney Smith received these claims from the trustee he handed them to a clerk in his office, directing him to put them with the papers in this proceeding, and shortly after told the clerk to file the proofs of the claim with the referee. The clerk neglected to do so, and some time afterwards, upon being asked in regard to it, said that he would do so immediately. This was before the expiration of the year after the adjudication. But he again failed to make the filing. The Dauchy proof, which had been left with the attorney, is lost and cannot be found, after diligent search made by the attorney for it in his office. The other two claims, the Orcutt Company and Duncan's own claim, were found in a package of papers relating to another bankruptcy proceeding. Another proof of claim, for the same amount, was made by the Dauchy Company April 2, 1904, and, with the Duncan and Orcutt proofs, was presented to the referee for filing, each proof being accompanied by a petition, dated April 2, 1904, for leave to file each of said claims nunc pro tunc as of a date prior to December 3, 1903, or for such other or further relief as might be just and proper. Smith was not the attorney for any of the claimants, and his failure to file with the referee was not by virtue of any instructions to withhold such claims from filing, nor was it known on the part of any of the claimants that he had failed to file them until more than a year after the adjudication.

Upon the presentation of these claims with the petition, other creditors of the bankrupts objected to the granting of the relief asked in the petition, upon the ground that the claims had not been seasonably presented to the court, and were barred under the provisions of § 57n of the bankruptcy act. [30 Stat. at L. 561, chap. 541, U.S.C.omp. Stat. 1901, p. 3444.]

Upon the hearing of the petition for leave to file these proofs of claim, the referee to whom the case had been referred denied the petition, under the objection of other creditors, on the ground that, one year having expired subsequent to the adjudication of bankruptcy and prior to the filing of the several petitions and the presentation therewith to the referee, the referee had no power to permit the filing of said proofs of claims, and that neither the referee nor the court had any discretionary power to permit either of said proofs of claims to be filed, either nunc pro tunc or otherwise. An order denying the relief asked was duly entered.

The referee then certified for review by the district court the question whether his decision was correct in refusing the relief stated by the claimants.

The district court directed that the claims of the petitioning creditors should be filed as of the date when delivered to the trustee.

Charles H. Green, one of the creditors of the bankrupts, thereupon appealed from the order of the district court reversing the determination made by the referee, to the United States circuit court of appeals for the second circuit, and in his appeal, in view of the position of the trustee and his refusal himself to act in the matter, Green asked that he might be permitted to prosecute the appeal for himself and the other creditors. The district court thereupon allowed the appeal and cited the respondents to appear in the circuit court of appeals. That court, having heard the case argued, reversed the decision of the district court, and affirmed that of the referee. A brief memorandum was filed by the court, in which it was stated that the referee had given a very full examination of the question of law involved, and that the court concurred in his interpretation of the statute, and that his opinion might be printed as a supplement to the memorandum of the court.

Messrs. Reginald S. Huidekoper, Charles Cowles Tucker, and J. Miller Kenyon for petitioners.

Messrs. Herbert D. Bailey and Frank H. Deal for respondents.

[Argument of Counsels from 99 intentionally omitted]

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court: 

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