Rossman v. Mitchell
| Citation | 76 N.W. 48,73 Minn. 202 |
| Decision Date | 16 July 1898 |
| Docket Number | 10,983 - (88) |
| Parties | C. H. ROSSMAN v. CYRIL MITCHELL and Another |
| Court | Supreme Court of Minnesota (US) |
Original Opinion Filed July 2, 1898
Fraudulent Conveyance by Insolvent -- Replevin by Receiver.
Where an insolvent debtor has transferred his personal property to defraud his creditors, his assignee or receiver in insolvency may avoid such sale by demanding of the fraudulent vendee a return of the property; and, if the demand is refused, he may replevy the property, or sue the vendee for the value thereof. He is not required to first bring an equitable action to set aside the sale.
Pleading -- Appointment of Receiver -- Omission of Proceeding or Court -- Demurrer -- Legal Capacity to Sue -- Assignment of Error.
An allegation in general terms by a plaintiff, suing as a receiver, that at such a time, in such an action or proceeding and by such a court or officer, he was duly appointed receiver of the estate of such a party, is sufficient. But a complaint which does not state the action or proceeding or the court in and by which the plaintiff was appointed receiver is not sufficient on demurrer.
Respondent having made a motion for a reargument, the following opinion was filed on July 16, 1898.
The respondent, on a motion herein for a reargument, urges that the sufficiency of the allegations of the complaint as to the representative character of the plaintiff are not raised by the general demurrer, and that the question can only be raised by demurrer on the ground that plaintiff has not legal capacity to sue.
Where a complaint states a cause of action in the plaintiff, but it appears on the face of the complaint that the plaintiff, by reason of a want of capacity or authority, cannot legally prosecute the action, a general demurrer does not lie. In such a case the demurrer must be on the ground that the plaintiff has not legal capacity to sue. Walsh v. Byrnes, 39 Minn. 527, 40 N.W. 831.
But such is not this case. A complaint which does not state facts constituting a cause of action against the defendant, and in favor of the plaintiff, is demurrable on the ground that it does not state facts sufficient to constitute a cause of action. 6 Enc. Pl. & Pr. 348; Maxwell, Code Pl. 374. The complaint in question stated a cause of action in favor of an assignee or receiver of the insolvent, if there was one, but it...
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