Kenney v. Goergen

• Decision Date: 13 December 1886
• Citation: 36 Minn. 190
• Parties: WILLIAM KENNEY <I>vs.</I> WALTER GOERGEN.
• Court: Minnesota Supreme Court

36 Minn. 190

WILLIAM KENNEYvs.

WALTER GOERGEN.

Supreme Court of Minnesota.

December 13, 1886.

Action to recover possession of personal property. In his answer the defendant denied plaintiff's ownership and alleged that he took the property as sheriff, by virtue of a writ of attachment in a suit by one Holloway against one Robert Kenney, a non-resident, who was the owner of it. He also alleged that a few days before the note on which the attachment suit was brought became due, the plaintiff received the property from Robert Kenney, and that "the pretended sale" of the property "and transfer thereof by said Robert Kenney to said plaintiff was for the purpose of defrauding and hindering the creditors of said Robert Kenney, and was fraudulent and void as to the creditors

of said Robert Kenney, and said pretended transfer from said Robert to said William took place while said Robert Holloway was a creditor of said Robert Kenney as aforesaid."

At the trial in the district court for Houston county, before Farmer, J., the plaintiff objected and excepted to the admission of evidence to prove a fraudulent sale to plaintiff, because of failure of the answer to state facts sufficient to constitute such a defence. He also objected and excepted to the admission of the record in the attachment suit, on the grounds mentioned in the opinion, and to the instructions on which the 6th and 7th assignments of error are based, and which were to the effect that to impeach a sale of personal property for fraud upon creditors, it is not necessary to show a fraudulent intent on the part of the purchaser, but it is sufficient if the buyer knew of the seller's fraudulent intent, or had notice of facts from which such intent might reasonably and naturally be inferred by an ordinarily cautious person, and that in such case a fraudulent transfer is void as to creditors though the buyer paid a valuable consideration. The jury found for defendant, a new trial was refused, judgment was entered on the verdict, and plaintiff appealed.

P. J. & E. H. Smalley, for appellant.

Kirkpatrick, Alexander & W. H. Harries, for respondent.

MITCHELL, J.

1. Appellant cites numerous authorities to the effect that, where a defendant is a non-resident who has not been served with process, and who has not appeared in the action, it is the fact alone that he has property in the state subject to attachment that enables the court to obtain jurisdiction. This is elementary, but it is not necessary to state that fact in the affidavit for attachment. The statute does not require it. Gen. St. 1878, c. 66, § 147. Such an allegation would serve no good purpose, for the mere existence of property within the state does not give the court jurisdiction. The proceedings, although in form in personam, are in effect in rem; and it is only by attaching the property that the court acquires jurisdiction, and then only to the extent of the property attached. If no property be found on which to levy, there is nothing to which the jurisdiction can attach, and the court could proceed no further. Wade, Attachm. § 70; Drake, Attachm. § 5; ...