Cederberg v. Gunstrom

• Decision Date: 01 February 1935
• Docket Number: 30321.
• Parties: CEDERBERG v. GUNSTROM.
• Court: Minnesota Supreme Court

258 N.W. 574

193 Minn. 421

CEDERBERG v. GUNSTROM.

No. 30321.

Supreme Court of Minnesota.

February 1, 1935

Appeal from Municipal Court of Minneapolis; Paul S. Carroll, Judge.

Action by Adolph Cederberg against Elmer L. Gunstrom. From an order denying his motions for a new trial and to amend findings and conclusions of the court, defendant appeals.

Affirmed.

Syllabus by the Court .

1. A past-due sum or installment of alimony payable to a divorced wife is assignable.

2. A discharge in bankruptcy does not discharge such a claim.

Harold C. Bellew and Mark J. McCabe, both of Minneapolis, for appellant.

Norton & Norton, of Minneapolis, for respondent.

I. M OLSEN, Justice.

In 1930, Mint Gunstrom obtained a decree of divorce against her hesband, Elmer L. Gunstrom, the defendant herein. Pending the suit for divorce, a written agreement was entered into between the parties fixing the amount of alimony to be awarded to the plaintiff in the case if an absolute divorce was obtained by her. The alimony agreed upon was in the amount of $2,100, to be paid in monthly installments extending over a period of three years beginning August 1930. The defendant paid the alimony so provided until there was left unpaid a balance of $240. This balance was never paid and, after it became due, the said Mint Gunstrom duly assigned her claim for said amount to this plaintiff. Plaintiff then brought suit, and upon due trial before the court without a jury the court found in favor of the plaintiff and ordered judgment against the defendant for the sum of $240, with interest and costs. Defendant moved for a new trial, including in the motion a motion to amend the findings and conclusions of the court, and appeals from the order denying his said motion.

Defendant presents two points: First, it is urged that the claim in question, being a claim for alimony, was not assignable, and, therefore, plaintiff has no cause of action and could not recover. The cases cited to sustain that proposition are not at all conclusive in our opinion. While there are some authorities holding that an order or decree for alimony which is payable in the future is not assignable because not creating a vested right in the wife, we believe, however, that past-due sums or installments of alimony are generally recognized as assignable. Bessett v. Waters, 103 Kan. 853, 176 P. 663; Meissner v. Bergman, 11 Ohio Cir. Ct. R. 539; Harrison v. Harrison, 13 Law Reports, Probate Division, (Eng.) 180; Watkins v. Watkins, 1896 Law Reports, Probate Division (Eng.) 222; Lynham v. Hufty, 44...