Kells v. Nelson-Tenney Lumber Co.
| Decision Date | 17 October 1898 |
| Docket Number | 11,426 - (237) |
| Citation | 76 N.W. 790,74 Minn. 8 |
| Parties | LUCAS KELLS v. NELSON-TENNEY LUMBER COMPANY |
| Court | Minnesota Supreme Court |
Lucas Kells, as assignee of N.P. Clarke & Co., insolvents, offered at public auction certain pine lands belonging to the insolvent estate. There being no bids received, he negotiated a sale thereof for $36,500 to the Brainerd Lumber Company subject to the approval of the court. Upon applying to the district court for Stearns county for an order confirming the sale, certain creditors of the insolvents filed a protest against the confirmation of such sale on the ground that another bidder had made an offer of $38,000, and asked for an order confirming a sale to the latter bidder. The court Baxter, J., confirmed the sale to the Brainerd Lumber Company. From the order of confirmation the Nelson-Tenney Lumber Company, a creditor of the insolvents, appealed. In the supreme court a motion was made to dismiss the appeal. Appeal dismissed.
Service of Notice of Appeal -- Adverse Party -- G.S. 1894, § 6134.
The adverse party, within the intent of the statute (G.S. 1894, § 6134) relating to appeals, means the party whose interest, in relation to the subject of the appeal, is in direct conflict with a reversal or modification of the order or judgment appealed from.
Insolvency -- Confirmation of Sale by Assignee -- Purchaser a Necessary Party to an Appeal.
A purchaser at a sale made by an assignee in insolvency, subject to the approval of the court, is a party to the proceedings resulting in an order confirming the sale, and a necessary and adverse party to an appeal by a creditor from such order, upon whom notice of appeal must be served.
Wilson & Van Derlip, for appellant.
W. E. Hale and Charles J. Traxler, for respondent.
The assignee herein entered into a written contract with the Brainerd Lumber Company, whereby he sold to it, subject to confirmation by the court, certain pine land belonging to the trust estate. He made a written report thereof, to which was attached a copy of the contract, to the court, which made an order that creditors show cause why the sale should not be confirmed. The appellant appeared, and opposed the confirmation; but the court made its order confirming the sale, from which the appellant appealed, serving the notice thereof on the assignee, but not upon the purchaser. This is a motion to dismiss the appeal, because the purchaser was not made a party to the appeal.
G.S 1894, § 6134, provides that an appeal shall be made by service of a notice in writing on the adverse party and the clerk of court. While an appeal is the continuation of the original action or proceeding in another jurisdiction, yet it is analogous in many respects to a writ of error, which is regarded as the beginning of a new action; and this court will consider only questions between the appellant and the parties upon whom the notice of appeal has been served. Therefore the notice of appeal must be served on each adverse party as to whom it is sought to review, in this court, any order or judgment, although he did not appear in the proceeding or action in the district court. Frost v. St. Paul B. & Inv. Co., 57 Minn. 325, 59 N.W. 308; Oswald v. St. Paul G. Pub. Co., 60 Minn. 82, 61 N.W. 902; Lambert v. Scandinavian-American Bank, 66 Minn. 185, 68 N.W. 834. It necessarily follows that where the order appealed from is indivisible, and must be affirmed, reversed or modified as to all parties to the action or proceeding, the appeal must be dismissed if they are not all made parties to the appeal. The order in this case is such an order. It cannot be reversed as to the assignee without reversing it as to the purchaser; and if...
To continue reading
Request your trial