Pierce v. Wagner
| Decision Date | 29 May 1896 |
| Docket Number | 9886--(201) |
| Citation | 67 N.W. 537,64 Minn. 265 |
| Parties | HAROLD E. PIERCE v. W. A. WAGNER |
| Court | Minnesota Supreme Court |
Original Opinion of April 27, 1896, Reported at: 64 Minn. 265.
Application denied.
Upon Petition for Reargument.
Upon an application for a reargument the claimant or intervenor complains because we did not consider his ninth assignment, to-wit: that "the court erred in failing to find from the testimony in said action that the judgment of plaintiff against defendant, W. A. Wagner, upon which the garnishee herein was based, was satisfied by virtue of a levy made upon an execution issued upon said judgment subsequent to the service of said garnishee process upon garnishee."
It would be a sufficient answer to say that the trial court was never asked to make any such finding. But waiving this, and also the question whether the allegations of plaintiff's answer to the claimant's intervention complaint did not stand admitted for want of a reply (see Smith v. Barclay, 54 Minn. 47, 55 N.W. 827), there is no merit in the point. Giving the claimant the benefit of the very most that the evidence possibly tended to show, it was simply to the effect that, after plaintiff had garnished money enough to pay part of his judgment, he subsequently levied on other property which would have sold for more than enough to pay the whole judgment. This did not operate as a release of the money garnished. It may have amounted to an excessive levy; but that is a question between the plaintiff or the officer making it and the defendant.
The First National Bank of Hastings v. Rogers, 13 Minn. 376 (407), relied on by counsel is not in point. Counsel also seems to think that we held that all chattel mortgages which provide for the mortgagor remaining in possession, selling the property and accounting to the mortgagee for the proceeds are per se void; also that, although a mortgage was valid when made it would become invalid as to creditors by reason of any subsequent "laxity of administration" or departure from "a strict compliance" with its terms. An examination of the opinion will show that we did not hold anything of the kind. Neither did we hold that the particular mortgage in question was void on its face. We had no occasion to consider that question.
Application denied.
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