Schulte v. First Nat. Bank of Minneapolis

• Decision Date: 21 July 1885
• Parties: SCHULTE, ASSIGNEE, ETC., v FIRST NAT. BANK OF MINNEAPOLIS AND OTHERS.
• Court: Minnesota Supreme Court

34 Minn. 48

24 N.W. 320

SCHULTE, ASSIGNEE, ETC.,vFIRST NAT. BANK OF MINNEAPOLIS AND OTHERS.

Supreme Court of Minnesota.

Filed July 21, 1885.

Appeal from a judgment of the district court, Hennepin county.

Ueland, Shores & Holt, for respondent, John Schulte, assignee, etc.

Wilson & Lawrence, for appellant, First National Bank of Minneapolis.

DICKINSON, J.

The defendant bank recovered a judgment against the plaintiff's assignor and execution was issued and levied upon property of the latter. Within 10 days thereafter the judgment debtor made an assignment to the plaintiff under the insolvent law of 1881, c. 148. By the terms of the statute cited the effect of the assignment was to dissolve the levy under execution unless the complaint in the action in which the judgment was recovered was “filed in the office of the clerk of the court twenty days prior to the entry of the judgment.”

The issue in this case was as to whether the complaint in the action referred to was so filed. The office of the clerk of the court is adjacent to the court-room of the district court. More than 20 days prior to the entry of the judgment, the complaint in the action was delivered to the clerk of the court, to be filed. The evidence is conflicting as to whether this occurred in the clerk's office or in the court-room; but it appears that the proper indorsement was made upon the complaint by the clerk at his desk in the court-room, and that it was then left by him in a desk in the court-room until the day on which judgment was rendered, December 2d, and until the latter day no record was made in the clerk's office of the filing of the complaint.

The cause having been tried by the court, the facts were found to be that the complaint was taken to the office of the clerk to be filed; that it was handed to the clerk “as the latter officer was passing from his office into the court-room,” where he indorsed and deposited the paper as before stated; and that the complaint “was never filed or on file in the office of said clerk until the said second day of December, 1884, (the day of entering judgment,) nor was any entry thereof made in the register of actions or elsewhere in said clerk's office” until the day last named.

Upon the facts so found it was considered that the indorsed filing upon the complaint and the entry in the register of actions should be amended so as to show the complaint to have been filed on the second day of December; and that the assignee of...