Paine v. Gunniss
| Decision Date | 06 February 1895 |
| Docket Number | 9167 |
| Citation | 62 N.W. 280,60 Minn. 257 |
| Parties | FREDERIC W. PAINE, Assignee, v. JOHN T. GUNNISS, Receiver |
| Court | Minnesota Supreme Court |
Appeal by John T. Gunniss, as receiver of A. V. Kelley & Co. insolvents, from an order of the district court for St. Louis county, Ensign, J., denying the motion of the receiver to vacate and set aside a certain levy by virtue of an execution issued upon a judgment which was recovered by the Iron River Sandstone Co. against A. V. Kelley & Co., and was assigned to Frederic W. Paine. Reversed.
The motion was submitted upon an agreed statement of facts, the material parts of which are given in the opinion.
The order of the court below denying the motion to vacate the levy, and adjudging the levy to be valid and in full force is reversed.
J. D Holmes and Cash, Williams & Chester, for appellant.
The board of education being a public corporation, property of other persons in its possession is not subject to levy. McDougall v. Board of Supervisors, 4 Minn. 130 (184); Roeller v. Ames, 33 Minn. 132, 22 N.W. 177; City of Chicago v. Hasley, 25 Ill. 595; Merwin v. City of Chicago, 45 Ill. 133. Only absolute and adjudged debts are subject to levy under our statute. Claims for torts or unliquidated damages cannot be seized. Webber v. Bolte, 51 Mich. 113, 16 N.W. 257; Crandall v. Blen, 13 Cal. 15; Stromberg v Lindberg, 25 Minn. 513. The statute provides that such claims shall be reached by supplementary proceedings. Knight v. Nash, 22 Minn. 452; Habenicht v. Lissak, 78 Cal. 351, 20 P. 874; Lowenberg v. Greenebaum, 99 Cal. 162, 33 P. 794.
McCordic & Crosby, for respondent.
In McDougall v. Board of Supervisors it was decided that public corporations are not liable to garnishment. The opposite rule is ably stated in Waterbury v. Board of Commissioners, 10 Mont. 515, 26 P. 1002. The true rule would seem to be stated in Dillon, Mun. Corp. § 101. That rule has been followed in this state where property in the hands of a public corporation was taken upon supplementary proceedings. Knight v. Nash; Roeller v. Ames. In McDougall v. Board of Supervisors it does not appear that the debt garnished was on a salary of a public officer. The present tendency is to adopt the rule in Dillon. Pendleton v. Perkins, 49 Mo. 565. In Knight v. Nash the debt was unliquidated. That extras had not been paid for appears by the statement that payments already made were "to apply on said contract price," etc. The claim existed before the levy, and had not been paid. The estimates made from time to time did not include this claim. At the time of the levy, Kelley & Co. were owners of the chose in action. There was no contingency about the claim. The right was a vested one, and the amount to be paid was to be determined by the contract. Even if the interest were contingent, it could be levied on. The interest of a partner in a partnership is contingent, and that can be levied on. Barrett v. McKenzie, 24 Minn. 20; Wiles v. Maddox, 26 Mo. 77. A contingent remainder can be levied on. White v. McPheeters, 75 Mo. 286; Wiant v. Hays, 38 W.Va. 681, 18 S.E. 807. Later cases in California do not follow the reasoning in Crandall v. Blen, but allow a levy and sale under execution. Wright v. Ward, 65 Cal. 525, 4 P. 534; Payne v. Elliot, 54 Cal. 339; McBride v. Fallon, 65 Cal. 301, 4 P. 17.
The facts in this case were stipulated and agreed upon by the respective parties. On August 24, 1892, the firm of A. V. Kelley & Co. entered into an agreement with the board of education of the city of Duluth for the erection of a certain school building in said city. The work was to be well and sufficiently performed and finished, under the direction and to the satisfaction of a superintendent; and the contractors were to proceed with the work in a prompt and diligent manner, and to finish it before August 15, 1893, and the roof of the building was to be finished by May 1, 1893. In case of default, the contractors were to pay the board of education, as liquidated damages, the sum of $ 50 per day for each day of such default. The contract further provided that if the contractors should at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements on their part, such refusal, neglect, or failure being certified by the superintendent, the board of education were at liberty, after three days' written notice to the contractor, to provide such labor and materials, and deduct the cost thereof from any money due or thereafter to become due to the contractors under the contract; and if the superintendent certified that such refusal, neglect, or failure was sufficient ground for such action, the board of education was at liberty to terminate the employment of the contractors, and finish the work itself. The original contract price was the sum of $ 83,842.50, subject to additions or alterations. Eighty-five per cent. of work done and materials furnished in place was to be paid on estimates furnished by the superintendent as the work progressed. Prior to August 12, 1893, the contractors had been paid by the board of education, to apply on this contract, the sum of $ 70,512.33, which sum was in excess of 85 per cent. of the estimated value of all labor and material then placed in the building under the contract. All sums due the contractors upon estimates prior to August 12, 1893, had been fully paid; and, in addition to the sum so paid, the board of education had accepted orders of said contractors on account of labor and material furnished under said contract to the amount of $ 8,653.79.
On August 12, 1893, the Iron River Brown Stone Company recovered judgment against the contractors in the sum of $ 1,771.85, for material furnished them and used by them in the construction of said building; and upon the same day execution was...
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