Sec. Nat. Bank of Fargo v. Bothne

• Decision Date: 29 December 1927
• Docket Number: No. 5384.,5384.
• Citation: 217 N.W. 148,56 N.D. 269
• Parties: SECURITY NAT. BANK OF FARGO v. BOTHNE et ux.
• Court: North Dakota Supreme Court

56 N.D. 269

217 N.W. 148

SECURITY NAT. BANK OF FARGO

v.BOTHNE et ux.

No. 5384.

Supreme Court of North Dakota.

Dec. 29, 1927.

Syllabus by the Court.

An equitable action by a judgment creditor to set aside a fraudulent conveyance, to the end that the property transferred may be applied in payment of the plaintiff's judgment, is not an action wherein an attachment may issue, under the provisions of section 7537, C. L. 1913.

An order denying a motion to dismiss an action on the ground that the court has no jurisdiction is not appealable, under the provisions of section 7841, C. L. 1913.

Appeal from District Court, Steele County; A. T. Cole, Judge.

Action by the Security National Bank of Fargo against M. S. Bothne and wife. From an order denying defendants' motion to dissolve an attachment and to dismiss the action, defendants appeal. Part of order denying motion to dissolve attachment reversed; otherwise, appeal dismissed.J. E. Hendrickson, of Fargo, and C. G. Dosland, of Moorhead, Minn., for appellants.

J. J. Mulready, of Fargo, for respondent.

NUESSLE, J.

This action was brought to set aside certain transfers of real property alleged to have been fraudulently made. Plaintiff in its complaint sets out that in December, 1926, it recovered a judgment against the defendant M. S. Bothne in Cass county; that an execution was issued thereon, but that such execution was returned by the sheriff of Cass county unsatisfied; that at the time the debt was incurred, on account of which the judgment was obtained, the defendant M. S. Bothne was the owner of certain real property in Steele county; that after he became indebted to the plaintiff he transferred such property to his wife, the defendant Sophia Bothne; that such transfer was made without consideration, and with the intent on the part of both parties thereto to defraud the plaintiff and other creditors, and to hinder and delay them in the collection of their debts; that such transfer was made in contemplation of the suit which the plaintiff thereafter brought, and of the judgment which it obtained therein, and to prevent the satisfaction of such judgment out of the property of M. S. Bothne; that the real property so transferred from M. S. Bothne to Sophia Bothne constituted all of the property and estate of M. S. Bothne, and that the transfer was made for the purpose of rendering him insolvent and placing his property beyond the reach of his creditors; that, notwithstanding the transfer of such property, there was no change of possession, and the same has remained in the actual possession and under the control of M. S. Bothne; that M. S. Bothne has no property in North Dakota, other than that transferred, out of which plaintiff's judgment can or could be satisfied; that both M. S. Bothne and Sophia Bothne are residents of the state of Minnesota; that the plaintiff has no adequate remedy at law in the premises; and plaintiff prays judgment that the deed and transfer of the real property in question be adjudged fraudulent and void and set aside; that such property be adjudged subject to the lien of plaintiff's judgment and satisfied out of the same; that the defendants be accountable under the direction of the court for the whole of such property; that the plaintiff have such other and further relief as may be just and equitable in the premises.

The instant action was begun in the county of Steele. After the summons and complaint were filed, the plaintiff procured the issuance of a warrant of attachment against the defendant M. S. Bothne on the ground that “he had attempted to sell and dispose of his property, and was about to sell, assign, transfer, or otherwise dispose of it, with intent to defraud his creditors, and to hinder and delay them in the collection of their debts.” The plaintiff also made and filed an affidavit for publication, wherein it was recited that the defendants M. S. Bothne and Sophia Bothne were residents of the city of Moorhead, Minn.; that personal service of the summons and complaint could not be made upon them within the state of North...