Dunham v. Byrnes
| Decision Date | 29 November 1886 |
| Citation | 30 N.W. 402,36 Minn. 106 |
| Parties | Franklin Dunham, Receiver, v. Timothy E. Byrnes and others |
| Court | Minnesota Supreme Court |
One Salsbury having recovered judgment against one William A Rogers, and execution having been returned unsatisfied, the plaintiff in this action was appointed receiver of the property of Rogers, in proceedings supplementary to the execution, and, as such receiver, brought this action in the district court for Hennepin county, to set aside conveyances of land made by Rogers to the defendants, upon the ground that the same were fraudulent as to creditors and made without consideration. The defendants answered, and when the action was called for trial, and before the introduction of any evidence, moved for a dismissal upon the ground that the plaintiff has not capacity to sue. The motion was granted by Young, J., it being admitted that no personal property is involved in the action. Defendants appeal from an order granting a new trial.
Order affirmed.
C. H Benton, for appellants.
E. A Campbell and J. E. Waters, for respondent.
When this cause came on for trial, the court dismissed the same upon the defendants' motion. Subsequently, upon reconsideration of the case as presented by the pleadings, the court granted a new trial. From this order the defendants appealed. There was no impropriety in the practice. If the court erred in dismissing the action, it was right to grant a new trial. Although no evidence had been introduced, the cause was before the court for trial. "A verdict, report, or decision may be vacated, and a new trial granted," for "irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court * * * by which the moving party was prevented from having a fair trial." Gen. St. 1878, c. 66, § 253.
The complaint should be sustained as respects the sufficiency of the allegations as to the recovery and docketing of the judgment, the issuing and return of execution, the proceedings supplementary to execution, the appointment of this plaintiff as receiver, and his authorization by order of the court to prosecute this action. These facts are briefly stated, but the pleading seems to have been sufficiently definite to inform the defendants as to the facts referred to, and by the answer the alleged facts are admitted except as to the conferring of authority to sue upon the receiver, which is denied.
The principal question presented by the appellants is as to the power of a receiver appointed in proceedings supplementary to execution to maintain an action to avoid a conveyance of real property fraudulently made by the debtor to defraud his...
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