Barrett v. M'Kenzie

• Decision Date: 01 August 1877
• Citation: 24 Minn. 20
• Parties: EDWARD H. BARRETT and others <I>vs.</I> S. A. McKENZIE.
• Court: Minnesota Supreme Court

24 Minn. 20

EDWARD H. BARRETT and others vs. S. A. McKENZIE.

Supreme Court of Minnesota.

August 1, 1877.

The plaintiffs in this action were Edward H. Barrett, F. E. Barrett, Preston Cooper and Cyrus Severance, who were copartners under the firm name of "The Asbestine Stone Company." The said Preston Cooper was also a member of another firm, composed of himself and one B. Cooper, and doing business as "Cooper Bros." While both of the copartnerships were still in existence, the firm of L. Butler & Co. recovered a judgment for $73.41 against the firm of "Cooper Bros.," upon which an execution was issued. On July 9, 1875, this execution was placed in the hands of the sheriff of Hennepin county, and on September 3, 1875, the sheriff duly levied, under the execution, upon the interest of Preston Cooper in a certain indebtedness due the Asbestine Stone Company from Stephen McKenzie, the defendant in this action. This interest thus levied upon was subsequently sold, September 24, 1875, by the sheriff, without a renewal of the execution, and purchased by the firm of L. Butler & Co. At the time of the execution and sale the whole indebtedness amounted to the sum of $579, and the defendant subsequently paid the plaintiffs $300 on the said debt. On November 11, 1875, the defendant declined to make any further payment upon the debt, until the levy and sale in favor of L. Butler & Co. were settled; whereupon Edward H. Barrett, one of the plaintiffs in this action, remarked: "That is only $73.41; pay me the balance, and you and Cooper fight that out; there will be that much coming to him." The balance thus demanded amounted to $165.69, and was thereupon paid to Barrett by the defendant. The same day the defendant paid over the balance of the indebtedness, in the sum of $73.41, to L. Butler & Co., and received their receipt for the same as money due the Asbestine Stone Company. This action was brought by the Asbestine Stone Company against McKenzie to recover this balance of $73.41. The cause was tried without a jury, by the municipal court for the city of Minneapolis, Cooley, J., presiding, who found, as conclusions of law, that the sheriff's sale under the execution in favor of L. Butler & Co. was void, because the said execution was not renewed within sixty days, "as by the statute in such case made and provided;" and that no title to said indebtedness could have passed to L. Butler & Co. by virtue of said sale, even if it had been made under a valid execution, because "each partner has an interest in each and every dollar thereof, and the same is indivisible by the officer of the law, except by the dissolution of the copartnership, settling up the indebtedness of the firm, and distributing of the balance of the assets, if any, proportionally among the copartners." Judgment was therefore entered for the plaintiffs, and from this judgment the defendant appealed.

W. E. Hale, for appellant.

Woods & Merrill, for respondents.

GILFILLAN, C. J.

The plaintiffs were a copartnership composed of Edward H. and F. E. Barrett, Preston Cooper and Cyrus Severance, and brought this action upon the balance of an indebtedness accruing to them as such copartnership. The defence rested on the facts that L. Butler & Co. recovered judgment, and issued execution thereon against the property of another copartnership, composed of Preston Cooper and one B. Cooper, and that the sheriff, before the return-day of the execution, levied upon, and, after the return-day, sold, the interest of Preston Cooper in the debt on which this suit is brought; that, at such sale, L. Butler & Co. became the purchasers, and afterwards the defendant paid to them the part of the debt constituting the balance for which this suit is brought, and paid the other part of the debt to plaintiffs.

The court below rendered judgment for the plaintiffs. This judgment must be sustained, if at all, upon one of two propositions: First, that the execution was void because made after the return-day of the execution; second, that if the sale was valid, the purchaser at it acquired thereby no title to, nor right to receive payment of, the debt or any part of it.

Upon the first of these propositions the law is clear. It is an undoubted rule at the common law, that a sheriff who commences the execution of his writ, by a levy, before the...