Bean v. Schmidt

• Decision Date: 20 June 1890
• Parties: BEAN, SHERIFF, v SCHMIDT.
• Court: Minnesota Supreme Court

43 Minn. 505

46 N.W. 72

BEAN, SHERIFF,vSCHMIDT.

Supreme Court of Minnesota.

June 20, 1890.

(Syllabus by the Court.)

1. Where a voluntary assignment made by a debtor under Gen. St. c. 41, is absolutely void, a creditor who has acquired a judgment in an action wherein the complaint was duly filed twenty days or more prior to the entry thereof, and who has levied, under an execution issued therein, upon property in the hands of the assignee, before any proceedings for the appointment of a receiver, under chapter 148, Laws 1881, are taken, will be preferred; and such proceedings will be without prejudice to his lien acquired by virtue of the levy.

2. Parties who base their petition on the fact that such levy has been made will not afterwards be heard to dispute the validity thereof.

3. The sheriff may enforce the levy by action to recover the property, or collect the money levied on in the hands of the assignee.

Appeal from municipal court, city of St. Paul; CORY, Judge.

Butts & Jacques and Albert B. Ovitt, for appellant.

Chapin & Sauer, for respondent.

VANDERBURGH, J.

Defendant is the assignee of Blissenbach & Selzer by an assignment which, it is admitted, was void on its face. It was dated June 19, 1888; and under it the defendant took possession of the assigned property, and converted it into money as assignee, and held the same in his hands on the 15th day of June, 1889. On the 14th day of June, 1889, Degraw and others had recovered a valid judgment against the assignors, Blissenbach & Selzer, upon a complaint filed May 23, 1889, more than twenty days prior to such judgment, which they were therefore entitled to enforce against the property of the judgment debtors; and on June 15, 1889, an execution was issued thereon to the sheriff, who thereupon, on the same day, levied upon “any and all indebtedness, money, debts, or credits in the hands of the assignee due and accruing to the judgment debtors.” Thereupon, on the 1st day of July, 1889, the St. Croix Lumber Company, a creditor of the judgment debtors, as petitioner, applied to the court for the appointment of a receiver, setting up in its petition, among other things the facts above recited, including the levy referred to; and the court, having heard the petitioner and the parties interested, including the assignee, assignors, and the judgment creditors above mentioned, granted the petition. The application was based upon the fact of the levy by the sheriff as aforesaid, the failure...