Milliken v. Mannheimer

• Decision Date: 16 May 1892
• Citation: 52 N.W. 139,49 Minn. 521
• Parties: Seth M. Milliken et al. v. Robert Mannheimer et al
• Court: Minnesota Supreme Court

52 N.W. 139

49 Minn. 521

Seth M. Milliken et al. v. Robert Mannheimer et al

Supreme Court of Minnesota

May 16, 1892

May 2 1892, Argued

Appeal by garnishees, Robert Mannheimer, Emil Mannheimer, Jacob Mannheimer, and Benjamin L. Goodkind, from a judgment of the District Court of Ramsey county, Otis, J., entered against them September 17, 1891, for $ 1,061.48.

These garnishees were on May 1, 1890, partners doing business at St. Paul under the firm name of Mannheimer Bros. On that day the plaintiffs, Seth M. Milliken et al., brought an action in the District Court of Ramsey county against the defendants Sigmond Fecheimer et al., to recover a large amount. On that day plaintiffs filed affidavit that the garnishees were indebted to the defendants in a sum exceeding $ 25, and issued a summons to them to appear before the court and make disclosure touching such indebtedness. On May 24, 1890, the court appointed John L. Moon, Esq., Referee to take the disclosure, and he took it June 11, 1890, and made his report December 30, 1890. From such disclosure it appeared that the garnishees, Mannheimer Bros., were indebted unto the defendants, Fecheimer et al., in the sum of $ 1,061.53 for goods bought by the garnishees of the defendants. But in February, 1890, Mannheimer Bros., at the request and for the accommodation of the defendants, made and delivered to them four negotiable notes for $ 6,250 each, due in six months. April 30, 1890, the defendants, Fecheimer et al., secured Mannheimer Bros. against loss by assigning to that firm some claims for goods they had sold, and by deeding to Robert Mannheimer, one of the garnishees, a house and lot, No. 49 East Fifty-seventh street, New York. No one of these four accommodation notes was due when the garnishee summons was served. The District Court ordered judgment upon the disclosure for the plaintiffs for the $ 1,061.48. But the garnishees obtained a stay of proceedings, and in March 1891, obtained an order that plaintiffs show cause why a rehearing should not be had, and they permitted to give further evidence, and show that they had since paid all four of said accommodation notes, and had not been able to collect out of the collateral security sufficient to reimburse them. They further stated that among the accounts assigned to them by Fecheimer et al. was this account against themselves for $ 1,061.48, and that they did not disclose this fact on the hearing before the referee because they and their counsel thought it unnecessary.

On June 16, 1891, that court discharged the order to show cause, and refused to open the case, or permit further disclosure saying:

"There are many things which the court, in the exercise of a sound discretion, may do before verdict or decision, that it cannot or ought not to do after that result has been reached, except upon good cause shown, and misapprehension of the law on the part of counsel or surprise at the rulings of the court has been uniformly held not 'good cause' for a new trial. Most of the States in the Union have held to this effect, and I have been unable to find, nor has my attention been called to, any case to the contrary. This case seems to me in all respects analogous to a case in which a motion for a new trial is made, not upon the ground of newly-discovered evidence, but for the purpose of making use of evidence known to exist and at hand all the time, and not used because of the mistaken supposition of counsel that he had made out a sufficient defense without it."

Judgment affirmed.

C. D. & Thos. D. O'Brien, for appellant, cited:

Stedman v. Vickery, 42 Me. 132; McMillan v. Hobson, 41 Me. 131; Allen v. Hazen, 26 Mich. 142; Collins v. Smith, 12 Gray, 431; Winsted Bank v. Adams, 97 Mass. 110; American Buttonhole Mach. Co. v. Burgess, 75 Me. 52; Carrique v. Sidebottom, 3 Met. (Mass.) 297; Tracy v. McGarty, 12 R. I. 168; Smith v. Brown, 5 Cal. 118; Bell v. Strow, 59 Mo. 118; Wingate v. Nutter, 17 N.H. 256; Drake v. Lake Shore & M. S. Ry. Co., 69 Mich. 168; Hovey v. Crane, 12 Pick. 167; Meadowcroft v. Agnew, 89 Ill. 469.

Warner, Richardson & Lawrence, for respondents, cited:

Donnelly v. O'Connor, 22 Minn. 309; Fuller v. Hutchings, 10 Cal. 523; Hite v. Lenhart, 7 Mo. 22; Morgan v. Houston, 25 Vt. 570; Beals v. Beals, 27 Ind. 77; Heath v. Marshall, 46 N.H. 40; Handy v. Davis, 38 N.H. 415; Anderson v. Market Nat. Bank, 66 How. Pr. 8; Witters v. Sowles, 31 F. 5; Pickler v. Rainey, 4 Heisk. 335; Shields v. Burns, 31 Ala. 535; Sanford Mfg. Co. v. Wiggin, 14 N.H. 441; Smith v. Natchez Steamboat Co., 1 How. (Miss.) 479; Taylor v. Harlow, 11 How. Pr. 286; Packer v. Heaton, 9 Cal. 569; Lawrence v. Fulton, 19 Cal. 684; Klockenbaum v. Pierson, 22 Cal. 160; Dothard v. Teague, 40 Ala. 583; Abell v. Simon, 49 Md. 318; McNeish v. Stewart, 7 Cow. 474; Philips v. Wheeler, 10 Tex. 536; Law v. Law, 2 Grat. 366; Northampton Bank v. Kidder, 50 N.Y.S. 246; Beal v. Codding, 32 Kan. 107.

OPINION

Vanderburgh, J.

The first error assigned is that the court erred in ordering judgment against the garnishees upon their disclosure.

Upon full disclosure, the garnishees clearly admitted an indebtedness to the defendants in the action to the amount for which judgment was ordered at the time of the service of the garnishee summons. Undoubtedly, it must clearly and affirmatively appear by the disclosure that such indebtedness existed;...