First National Bank of Winona v. Randall

• Decision Date: 10 May 1888
• Citation: 37 N.W. 799,38 Minn. 382
• Parties: First National Bank of Winona v. John J. Randall and others
• Court: Minnesota Supreme Court

37 N.W. 799

38 Minn. 382

First National Bank of Winona v. John J. Randall and others

Supreme Court of Minnesota

May 10, 1888

Appeal by plaintiff from an order of the district court for Winona county, Start, J., presiding, vacating a writ of attachment.

Order affirmed.

Wilson & Bowers, for appellant.

William Gale, for respondents.

OPINION

Dickinson, J. ^[1]

This is an appeal by the plaintiff from an order of the district court, vacating a writ of attachment against the property of the defendants, J. J. and C. S. Randall. The appellant claims that the defendants had no right to move for the vacation of the attachment, because (1) the time for answering had expired, and, while an answer had been made it was frivolous, and constituted no defence; (2) it did not appear that there had been any levy made under the writ of attachment; and (3) the defendants had made a general statutory assignment of all their property for the benefit of creditors, and only the assignee could make such a motion.

The statute (Gen. St. 1878, c. 66, § 158) declares the right of a defendant to make such a motion, "before the time for answering expires, or at any time thereafter when he has answered, and before trial." The insufficiency of the defence pleaded would not of itself determine the right to make the motion, at least so long as the answer was allowed to stand. Upon motion to try its sufficiency, or upon demurrer, an amendment might be allowed which would raise an issue for trial.

If the alleged grounds for the attachment do not exist, a defendant need not wait until his property has been seized before moving to vacate the writ.

The assignors had such a reversionary interest in the assigned estate that they might move to vacate the attachment. King v. Remington, 36 Minn. 15, (29 N.W. 352,) and cases cited. Under our insolvent law the value or extent of the assignors' interest in the estate is not inappreciable, although the debts may exceed the value of the assigned estate. It may be affected by the neglect or refusal of creditors to present their claims and to file releases.

In August, 1887, the defendants, J. J. and C. S. Randall, being then insolvent, and being indebted to the plaintiff in the sum of about $ 28,000 upon promissory notes which had been indorsed to the plaintiff by the defendant L. D. Randall executed to one Graves, of Dubuque, Iowa, mortgages upon a large part of their real and personal property, to secure notes then given to the latter for the sum of $ 22,000. This writ of attachment was...