Deppe v. ford

• Decision Date: 08 May 1903
• Docket Number: 13,494 - (67)
• Citation: 94 N.W. 679,89 Minn. 253
• Parties: ALBERT DEPPE v. FRANKLIN C. FORD and Another
• Court: Minnesota Supreme Court

94 N.W. 679

89 Minn. 253

ALBERT DEPPE v. FRANKLIN C. FORD and Another

Nos. 13,494 - (67)

Supreme Court of Minnesota

May 8, 1903

Appeal by W.S. Cilley, as receiver of the nonexempt property of defendant Franklin C. Ford, from an order of the district court for Washington county, Williston, J., discharging an order to show cause why said defendant should not be punished for contempt of court. Affirmed.

SYLLABUS

Appealable Order.

An order discharging an order to show cause why a party should not be punished in civil contempt proceedings is appealable.

Administration -- Sale of Decedent's Real Property.

Whatever may be the law since the enactment of Laws 1901, c. 89, a probate court prior to that time was authorized to license an executor or administrator to sell the real estate of the decedent for the payment of the expenses of administration or when it was for the best interest of the estate to do so although there were no debts against the estate.

A. C. Middelstadt, for appellant.

W. H. Williams, for respondents.

OPINION

START, C.J.

On July 21, 1902, a receiver of all of the property not exempt from execution of the defendant Franklin C. Ford was appointed in proceedings supplementary to execution by the order of the district court of the county of Washington. The defendant, by such order, was directed to execute and deliver to the receiver proper assignments and conveyances of all of his real estate wheresoever the same was situated. Thereupon the receiver made a written demand upon the defendant to convey to him certain lots and tracts of land therein described. The defendant conveyed a part of the land so demanded, but refused to so convey the remainder thereof. Upon the affidavit of the receiver setting forth such facts the district court made an order requiring the defendant to show cause why he should not be adjudged in contempt of court, and punished therefor. On the return day of the order the defendant appeared in response thereto, and the matter was heard and submitted to the court upon the affidavit of the receiver upon which the order was granted, and upon the affidavits of the defendant and his attorney, respectively, and the records and files in the proceeding. The district court made its order discharging the order to show cause, and the receiver appealed from the order.

1. The defendant here urges that the order is not appealable. The order was made in a proceeding to punish an alleged civil contempt as distinguished from a criminal contempt. See State v. Willis, 61 Minn. 120, 63 N.W. 169. If the defendant refused to comply with the order of the court as to the conveyance of his land to the receiver to be applied in payment of the plaintiff's judgment, he (plaintiff) had the right -- which was a substantial one -- to have the defendant punished in order to compel him to make the conveyance. The order discharging the order to show cause was then a final one, affecting a substantial right upon a summary application in an action after judgment, and was, therefore, appealable. G.S. 1894, § 6140, subd. 6; State v. Leftwich, 41 Minn. 42, 42 N.W. 598; State v. Willis, supra. The order was also, it would seem, appealable as one affecting a substantial right in a special proceeding. Schuster v. Schuster, 84 Minn. 403, 87 N.W. 1014.

2. The affidavit of the defendant showed that he had complied with the order of the court, and had conveyed to the receiver all nonexempt property which he owned or had any...