Second Nat. Bank v. Schranck

• Decision Date: 18 February 1890
• Parties: SECOND NATIONAL BANK OF ST. PAUL <I>vs.</I> EDWARD V. SCHRANCK and Garnishee.
• Court: Minnesota Supreme Court

43 Minn. 38

SECOND NATIONAL BANK OF ST. PAULvs.

EDWARD V. SCHRANCK and Garnishee.

Supreme Court of Minnesota.

February 18, 1890.

On March 5, 1889, one John Kraus brought suit against defendant Schranck, in a justice's court in St. Paul, and one Geo. W. Walsh was summoned as garnishee. On the same day Schranck made a general assignment to defendant Albert W. Schwabe of all his property not exempt from execution, for the benefit of such of his creditors as should file releases, the assignment reciting the garnishment proceedings, and purporting to be made under the insolvent law. (Laws 1881, c. 148.) On March 11, 1889, Schwabe accepted the trust, and on that day the assignment, with his acceptance, was filed in the office of the clerk of the district court for Ramsey county. On March 21st the inventory was filed, and on March 26th the assignee filed his bond. The suit in justice's court was called on the return-day, March 15th, and was continued by consent to March 22d, and again to March 29th, at ten o'clock A. M., when it was again called, and was dismissed for failure of plaintiff to appear within the hour allowed for that purpose, and for want of jurisdiction of the justice, and judgment was rendered against plaintiff for costs, and the garnishment proceeding was dismissed. On March 26, 1889, the plaintiff recovered and docketed a judgment for $310.35 against Schranck in the district court for Ramsey county, on a promissory note made December 31, 1888, and payable 30 days from date; and after the entry of the judgment, and on the same day, the plaintiff filed an affidavit for garnishment in the action, which was duly served on Schwabe, who disclosed that at the date of service he held in his hands $640, being the proceeds of the assigned property. The plaintiff thereupon filed a supplemental complaint against the garnishee, alleging the matters above stated, and also alleging that no pleadings, either verbal or written, were ever had in the action of Kraus against Schranck in justice's court; that Schranck was in no way indebted to Kraus; that at the date of the service of the garnishee summons in that action upon Walsh, the garnishee, the latter had no property or effects of Schranck in his possession or control, nor has he since had any, but on the contrary Schranck was indebted to Walsh in the sum of $27.50; that the action of Kraus against Schranck was fictitious, and was brought, and the garnishment made, solely in order to enable Schranck to take advantage of the insolvent law, and with the fraudulent purpose of evading the true object and meaning of that law....