In re Jones

• Decision Date: 29 May 1885
• Citation: 33 Minn. 405
• Parties: <I>In re</I> EVAN JONES and another, Insolvents.
• Court: Minnesota Supreme Court

Page 405

33 Minn. 405

In re EVAN JONES and another, Insolvents.

Supreme Court of Minnesota.

May 29, 1885.

Appeal from an order of the district court for Stevens county, Brown, J., presiding.

Spooner & Flaherty, for appellants.

George E. Darling and Jno. W. Arctander, for respondent, the receiver.

DICKINSON, J.

These appellants, Rudd & Green, were creditors of Jones & Jones, who were insolvent. Rudd & Green commenced an action in the district court for the recovery of their debt, the complaint being filed in the clerk's office and the summons personally served. Twenty days having elapsed after such filing and service, and the defendants being in default, judgment was duly entered, upon which execution was issued to a sheriff, who levied upon personal property of the judgment debtors. Some time after the levy, the court, upon the petition of other creditors of the judgment debtors, under the insolvent act of 1881, appointed a receiver of the property of the insolvent debtors, expressly including the property which had been levied upon and which was then held under the execution. This order of appointment further directed the sheriff to surrender such property to the receiver, and ordered the receiver to take the same and convert it into money, and to pay it to the creditors of the insolvents under the direction of the court. But, for the protection of any exclusive rights which the judgment creditors might have acquired through the execution, the receiver was directed to keep the proceeds of this property separate from other funds held by him as receiver, and to retain the same until the further order of the court. The judgment creditors, Rudd & Green, have appealed from the order. Our decision need be directed only to that part of the order which in terms affects the property held under the execution, and directs it to be disposed of as though the levy was avoided by the appointment of the receiver.

1. The order was appealable. It is within the statute which allows an appeal "from a final order affecting a substantial right, made in a special proceeding." Gen. St. 1878, c. 86, § 8; In re Graeff, 30 Minn. 358. The appellants had the legal right, unless the insolvency proceedings had the effect to vacate the previous levy under the execution, to have the property sold by the sheriff under the writ, and to have the proceeds applied directly to the satisfaction of their judgment. As respects that right the order requiring the property to be surrendered to the receiver, to be disposed of by him, and that the proceeds be retained and applied as the court might direct, was final, and it affected a substantial right.

2. The appointment of the receiver under the insolvent law (Laws 1881, c. 148) cannot be regarded as having the effect of avoiding the previous levy under execution, unless it is apparent from the terms of the statute that such was the intention of the legislature....