Iselin v. Simon
| Decision Date | 31 July 1895 |
| Docket Number | 9376-9377-(247-248.) |
| Citation | 64 N.W. 143,62 Minn. 128 |
| Parties | WILLIAM E. ISELIN and Others v. SIGMUND SIMON and Another |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county by William E Iselin and others against Sigmund Simon and another defendants, and Duluth Dry Goods Company, garnishee. Charles Scheuer intervened as claimant. The action was tried before Lewis, J., who found in favor of plaintiffs. Three separate appeals were taken, as follows: (1) By defendants, from an order denying their motion for a new trial; (2) by defendants, from an order denying their motion to dismiss the writ of garnishment and the service thereof; (3) by the intervenor, from an order denying his motion to dismiss the writ of garnishment and the service thereof. All affirmed.
Draper Davis & Hollister, for appellants.
Smith McMahon & Mitchell, for respondents.
On October 2, 1893, the plaintiffs made and filed in the office of the clerk of the district court in and for the county of St. Louis their complaint in this action, the here material allegations of which are substantially as follows: That between March 21, and August 1, 1893, the plaintiffs, at the request of the defendants, sold and delivered to them certain merchandise, of the reasonable value of $ 2,232, which sum they promised to pay therefor, but have not paid any part thereof, although payment has been duly demanded. On the same day the summons was issued, but not filed until October 24. The plaintiffs' attorney made and filed an affidavit for garnishment, and a garnishee summons was issued and served on the garnishee herein on October 2, returnable October 25. Upon the disclosure of the garnishee it appeared that Charles Scheuer, the claimant or intervenor herein, claimed to be the owner of the fund or money in the hands of the garnishee, and he was by order of the court directed to appear and assert his rights in the premises, if any he had. He so appeared, answered, and claimed the fund. October 24 the sheriff returned the summons non est, and it was on that day filed with the clerk of the court, with an affidavit for publication, and the publication of the summons was commenced October 26 and continued until December 4, when the defendants appeared and answered. So far as here material the answer is in these words: "Defendants deny each and every allegation" in said complaint contained.
The action was tried by the court without a jury, and on August 1, 1894, findings of fact and conclusions of law were filed, wherein the court found the allegations of the complaint to which we have referred true. It also further found as follows: "(3) That all of said goods were sold on a credit of 30 days from October 31, 1893," and, as a conclusion of law, that the plaintiffs were entitled to judgment for the amount claimed, and judgment was so ordered.
The plaintiffs never consented to litigate the issue as to whether or not the action had been prematurely brought, or to any change of the issues as made by the pleadings, and all evidence tending to show that the goods were sold on a credit was duly objected to by them, and exception taken, and the reception of such evidence, and the making by the court of its third finding of fact, and all evidence in support of it, were received and made against the timely objection and exception of the plaintiffs.
A motion to vacate the decision of the court and for a new trial was made by the defendants September 15, 1894, and denied, and on the same day they moved the court to dismiss the garnishee summons and vacate all proceedings thereunder, for the reason, among others, that this action was prematurely brought, which was denied. The intervenor at the same time made a like motion to dismiss the garnishee proceedings, which was also denied. From each of the three orders so made the parties respectively prosecute separate appeals. A decision of the defendants' appeal from the order denying their motion for a new trial will be decisive of the other appeals.
The defendants' main contention is that the goods, for the recovery of the purchase price of which this action was brought, were sold on a credit of 30 days from October 31, 1893, and hence the action was prematurely brought, and that it must abate. The plaintiffs claim: (1) That the action was not prematurely brought; (2) that it is immaterial whether it was or not, because the question is not raised by the answer.
Our conclusion as to the second of these propositions is decisive of the case, and renders any discussion of the first one unnecessary, further than to say that, if the goods in question were in fact sold on credit the term of which had not expired when the complaint was filed and...
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