McConnell v. Rakness

• Decision Date: 04 June 1889
• Citation: 41 Minn. 3,42 N.W. 539
• Parties: MCCONNELL ET AL v RAKNESS ET AL.
• Court: Minnesota Supreme Court

41 Minn. 3

42 N.W. 539

MCCONNELL ET ALvRAKNESS ET AL.

Supreme Court of Minnesota.

June 4, 1889.

(Syllabus by the Court.)

1. An order made by the district court, which simply discharges a garnishee after examination, is an appealable order.

2. In a deed of assignment made by the defendant he directed-First, the payment of the costs and expenses of executing the trust; second, the payment and discharge of the debts of all creditors who should file releases of their claims against him, and of those who should “otherwise be or become entitled to payment of their claims;” and if, after the payment of all costs and charges, and a payment in full of all his debts and liabilities, there should be a surplus, then, third, it should be repaid to the assignor, defendant. The deed did not recite the existence of facts which would authorize an assignment under the insolvency act, c. 148, Gen. Laws 1881, § 1, nor did such facts exist. Held, that the assignment was fraudulent and invalid, as against such of the defendant's creditors as elected to ignore it.

Appeal from district court, Murray county; PERKINS, Judge.

Action by W. W. P. McConnell and others against O. K. Rakness and others. From an order discharging a garnishee plaintiffs appeal.

Lorin Cray and J. L. Washburn, for appellants.

Wilson Borst, for respondents.

COLLINS, J.

The plaintiffs in this case appeal from an order made in the district court releasing and discharging a garnishee, after examination, from all liability under proceedings in garnishment. The respondents contend, upon the authority of Croft v. Miller, 26 Minn. 317,4 N. W. Rep. 45, that such an order is not appealable, and hence the appeal should be dismissed. In that case the attempt was made to remove to this court an order for judgment against a garnishee. In holding that it could not be done, but that judgment as directed must first be entered, and an appeal taken from such judgment, this court followed several cases,-particularly mentioned in its opinion,-in which the same question had been raised in the ordinarycivil action. Section 197, c. 66, Gen. St. 1878, authorizes an appeal by an aggrieved party to these proceedings from an order or from a final judgment. Section 187 of the same chapter directs the entry of judgment against a garnishee in case he is declared liable by the court, while section 175 forbids further proceedings, without the permission of the court, in certain cases, and whenever, upon full disclosure, a liability is denied by the garnishee; and section 177 authorizes the discharge of a garnishee, if it appears that he ought not to be held. As the statute does not compel a garnishee to obey a summons unless his fees for mileage and one day's attendance are tendered or paid in advance, it may be stated as the rule that, upon his discharge, the garnishee has no further claims for fees of any description, except, possibly, in the cases mentioned in sections 190-194. It follows that if judgment must be entered upon a discharge it would not be for money, but a simple repetition of the order,-a mere ceremony. We are of the opinion that such an entry is not contemplated by the statute, and this view is strengthened by knowledge of the fact that no such practice has been customary during the many years the statute has been in force.

To sustain the order of the district court discharging the garnishee, the instrument under which he claimed to hold the property of the defendant Rakness must be declared a general assignment without preferences, and valid under the provisions of the statute (title 3, c. 41, Gen. St. 1878) which regulates such assignments. It cannot be adjudged good under the terms of the insolvency act, (chapter 148, Gen. Laws 1881,) for the facts which alone authorized an...