Knight v. Nash

• Citation: 22 Minn. 452
• Parties: AUGUSTUS F. KNIGHT <I>vs.</I> PATRICK NASH.
• Decision Date: 23 March 1876
• Court: Supreme Court of Minnesota (US)

22 Minn. 452

AUGUSTUS F. KNIGHT vs. PATRICK NASH.

Supreme Court of Minnesota.

March 23, 1876.

Judgment having been entered in the district court for Ramsey county in favor of plaintiff and against defendant, and an execution on the judgment having been returned unsatisfied, an order for the examination of the defendant was granted on plaintiff's application, pursuant to which order the defendant was examined, and disclosed the facts stated in the opinion. Thereupon a receiver was appointed by order of Wilkin, J., from which order the defendant appealed.

Smith & Egan, for appellant.

I. V. D. Heard, for respondent.

CORNELL, J.

The order appealed from herein is "an order upon a summary proceeding in an action after judgment," affecting a substantial right of the appellant, and is appealable under Gen. St. ch. 86, § 8.

The order for the examination of the judgment debtor was granted upon the motion of the attorney of the judgment creditor, based upon the files and records of the court in the action, and plaintiff's affidavit, by which it was made to appear that the requisite facts existed which authorized the issuing of the order under Gen. St. ch. 66, § 299. The point that the affidavit did not disclose the nature of the relief sought is of no importance whatever. That appeared from the motion founded upon it, and the other records in the cause.

The disclosure made by the judgment debtor upon his examination fully supports the finding of the district judge — that the city of St. Paul is indebted to defendant in divers sums of money, growing out of the construction of a cistern on Ramsey street, and also a cistern on Commercial street, against which demands, as is claimed by him, the city has, or claims to have, certain offsets, though insufficient in amount to satisfy such indebtedness, upon which there is a balance due him, however; but how much it is impossible to determine until the alleged offsets are adjusted with the city, by suit or otherwise.

Upon this finding the judge made the order appealed from, directing said debtor to give plaintiff an order upon the city for the payment of his judgment out of any moneys owed by it to said debtor on account of said claims, in default of which the order is to operate as an assignment of the claims to plaintiff, who was appointed as a receiver, to adjust and collect the same, etc.

To this order appellant interposes several objections, which may be classed under the following heads: (1) That said...