Barnes v. Verry

• Decision Date: 23 March 1928
• Docket Number: No. 26632.,26632.
• Parties: BARNES v. VERRY (JONES et al., Garnishees; VERRY et al., Interveners).
• Court: Minnesota Supreme Court

218 N.W. 551

174 Minn. 173

BARNES v. VERRY (JONES et al., Garnishees; VERRY et al., Interveners).

No. 26632.

Supreme Court of Minnesota.

March 23, 1928.

Appeal from District Court, Wilkin County; S. A. Flaherty, Judge.

Action by F. R. Barnes against C. R. Verry, in which Lewis E. Jones and another were garnished, and in which Violette M. Verry and others intervened. From an adverse judgment, plaintiff appeals. Reversed and remanded, with directions.

N. F. Field, of Fergus Falls, and Schneller & Schneller, and Purcell & Heder, all of Wahpeton, N. D., for appellant.

W. S. Lauder, of Wahpeton, N. D., and Lewis E. Jones, of Breckenridge, for respondents.

OLSEN, C.

Plaintiff brought action to recover a sum of money from the defendant C. R. Verry, and, by garnishment, impounded money in the hands of Lewis E. Jones. The interveners, Violette M. Verry, John E. Verry, and Nellie M. Cross, claimed ownership of the money garnisheed, and were brought in as claimants. Pleadings were made up, and the issue as to whether the money garnisheed was, at the time the garnishee summons was served, the property of defendant, C. R. Verry, or of said interveners, was duly tried in the district court. Plaintiff, in the meantime, had obtained judgment in the main action against defendant for a sum greater than the sum garnisheed. The trial court found that the money garnisheed was the property of the interveners, and judgment was so entered, and plaintiff brought this appeal from such judgment.

The defendant and interveners are the children and heirs at law of one Thomas R. Verry, who died intestate some time in February or March, 1921. At the time of his death, he was the plaintiff in an action in the district court in Wilkin county, Minn., against one James Fitzgerald, the sheriff of that county. That action was to recover money collected by the sheriff upon a judgment in favor of C. R. Verry against one George Barnes, which judgment had been assigned by C. R. Verry to his father, Thomas R. Verry. Violette M. Verry was appointed administratrix of her father's estate, and was substituted, as such, as plaintiff in the suit against Fitzgerald. Judgment was thereafter obtained against Fitzgerald and collected by Lewis E. Jones, as attorney for the plaintiff in said action, on February 3, 1923. After deducting attorney's fees and costs, there remained in the hands of Mr. Jones the sum of $1,673.15, out of which sum there was $60 to be repaid to Violette M. Verry, administratrix, for costs advanced by her in the matter. Mr. Jones sent checks for $1,613.15 and $60 to Violette M. Verry, as administratrix, as soon as the money came into his hands, but in the meantime the estate of Thomas R. Verry had been closed, and she had been discharged as administratrix. She did not indorse or cash the checks. Apparently some dispute arose as to the disposition of the money by her, and payment of the checks was stopped. Thereupon the money was garnisheed in this action in September, 1923.

1. Thomas R. Verry was a resident of North Dakota, and his estate was administered in the probate court, there known as the "county court" of Walsh county, N. D. The administration of the estate was completed and ready for final decree on May 24, 1922. The four heirs, the defendant and the interveners in this action, one of whom was the administratrix of the estate, met at the county seat of said county on that day with the attorney who was conducting the proceeding. A form of final decree was considered and prepared. The defendant, C. R. Verry, and the intervener John E. Verry, were each indebted to the deceased, and consequently to the estate, in some amount. It is reasonably inferred from the evidence that there was dispute as to the amount owing by C. R. Verry; that there was some admission or concession to the effect that he was entitled to the proceeds of the Fritzgerald judgment; that thereupon an agreement in writing was entered into and duly signed by all of the heirs in the presence of the attorney for the estate; that such agreement was made for the purpose of settling all disputes between the parties, so that a final decree could then be entered; that, in consideration of the making of this agreement, the defendant C. R. Verry, consented to the entry of a final decree in the probate court, wherein it was recited that he was indebted to the estate in an amount greater than his share therein, and had agreed to the deduction thereof, and that the entire property of the estate should be assigned to the three interveners, and C. R. Verry be eliminated from participating therein.

The written agreement made by the heirs, as before stated, was not filed in, or presented to, the probate court, and such final decree was entered by the probate court on the same day that the written agreement was made. The written agreement, so entered into, provided, as far as necessary here to state, that the estate should be closed by the administratrix "so far as the proceedings in county court are concerned," and notwithstanding the claims against C. R. Verry and John E. Verry, that each one of the four heirs share and share alike in the estate; that the administratrix is authorized to disregard said claims, and also the assignment of all interest in the estate to the three other heirs by C. R. Verry and certain quitclaim deeds made by him, and that these things be recognized only in closing the estate; and it is agreed that C. R. Verry is to have the same share of the estate as the other heirs and the administratrix is authorized to carry out these provisions. Then it is further agreed that the proceeds, if any, of the suit by Thomas R. Verry (the decedent) against the sheriff of Wilkin county, Minn., upon a termination thereof, "belonging" to C. R. Verry, he paying all costs in the matter, and it is "recognized" by all of the heirs that the estate has no financial interest in said suit. The administratrix is authorized to assist in the prosecution of the suit in the name of the estate, but only as and for the benefit of C. R. Verry. Then follow provisions that it is understood that C. R. Verry is to take care of, and clear up, the Barnes judgment and levy on the undivided property of the estate, and that he is to pay the amount of a Bindewald note of $608.19, which is to be deducted from any money owing him under this agreement, unless sooner paid by him; that the administratrix is to have $500 additional compensation; that she is to collect the uncollected assets, and distribute them share and share alike; and that C. R. Verry and John E. Verry are to be charged their share of the inheritance tax.

The...