Ryan v. Colburn

• Citation: 241 N.W. 388,185 Minn. 347
• Decision Date: 19 February 1932
• Docket Number: No. 28780.,28780.
• Parties: RYAN v. COLBURN.
• Court: Supreme Court of Minnesota (US)

241 N.W. 388

185 Minn. 347

RYAN v. COLBURN.

No. 28780.

Supreme Court of Minnesota.

February 19, 1932.

Appeal from District Court, Hennepin County; P. W. Guilford, Judge.

Action by Genevieve Ryan against Addie C. Colburn. From an adverse judgment, defendant appeals.

Affirmed.

Katzmarek, Petzke & Warber, of Minneapolis, for appellant.

Works & Stoller, of Minneapolis, for respondent.

WILSON, C. J.

Plaintiff brought this action to have her homestead adjudged free from a judgment which defendant has against her. She was given the relief sought, and the defendant appealed from the judgment.

On October 14, 1926, defendant obtained a judgment against plaintiff for $1,111.71. Execution was returned unsatisfied. Supplementary proceedings were instituted on November 23, 1926. The order requiring the judgment debtor to appear for examination contained a provision restraining her from making any transfer or disposition of any property not exempt from execution until the further order of the court. She was examined, but did not disclose any nonexempt assets. On June 17, 1927, a second order in supplementary proceedings was signed containing the same restraining order, and again the judgment debtor appeared in court and submitted to an examination in which she did not disclose any nonexempt assets.

At the conclusion of each of these examinations in supplementary proceedings an order should have been entered discharging judgment debtor from further appearance in the supplementary proceedings and releasing the restraining order. This however was not done. No request therefor was made. Subsequent to the last examination plaintiff paid interest on a $2,500 mortgage on the premises from time to time, and it is claimed that such payments aggregated about $600.

On September 28, 1926, the premises in question were conveyed to plaintiff. Under previous arrangements a dwelling had been built thereon, and plaintiff with her family began living there on September 3, 1926, and were the first occupants of the house.

1 Mason, 1927, §§ 1630-3 to 1630-126, is incorporated and made a part of the home rule charter of the city of Minneapolis, adopted on November 2, 1930, and is known as the Housing Act. Section 1630-111 provides: "No building hereafter constructed as or altered into a dwelling shall be occupied in whole or in part for human habitation until the issuance of a certificate by the inspector of buildings that said dwelling conforms in all respects to the requirements of this act relative to dwellings hereafter erected."

Laws 1917, p. 185, c. 137, § 141. Sections 142 and 143 (1 Mason, 1927, §§ 1630-111 to 1630-113), provide that it shall be unlawful for any one to occupy a dwelling contrary to the foregoing provisions, and provides for the imposition of a fine or workhouse sentence for the violation thereof.

Defendant claims that the plaintiff is not entitled to hold the premises as her homestead, and says that the court should not give her the relief which she seeks, for two reasons:

(a) That plaintiff paid the item of about $600 and perhaps other money in violation of the restraining orders, which were never discharged and that she did not truthfully disclose the pertinent facts in her examinations in supplementary proceedings.

(b) That plaintiff occupied the premises illegally, in that she failed to procure the certificate that the dwelling house was fit for occupancy as required by the "housing act."

1. The record is sufficient to support the conclusion of the trial court that there is no evidence upon which the court could find with reasonable certainty that the money used in paying interest on the mortgage was the proceeds of the sale of nonexempt property, there being evidence of earnings by the plaintiff by keeping boarders and that her...