Stacy v. Stephen
| Decision Date | 18 January 1900 |
| Docket Number | 11,853 - (188) |
| Citation | 81 N.W. 391,78 Minn. 480 |
| Parties | E. P. STACY and Others v. WILLIAM STEPHEN |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county against William Stephen, doing business as Central Mercantile Company defendant, and W. D. Underhill, garnishee, to recover $247.54 for goods sold and delivered. From an order, Cant, J. denying a motion for leave to file a supplemental complaint making the garnishee a party, plaintiffs appealed. Affirmed.
Garnishment -- Supplemental Complaint.
To entitle a party to an order permitting the filing of a supplemental complaint under G.S. 1894, § 5319, he must make application therefor with reasonable diligence, and, if he neglects to do so for an unreasonable length of time, his application will be denied.
Renewal of Motion.
A motion cannot be renewed, where no new facts have arisen, without leave of court.
Austin N. McGindley, for appellants.
James A. Hanks, for garnishee respondent.
Eckman & Stevenson, for defendant respondent.
On August 30, 1898, the Central Mercantile Company, engaged in the commission business at Duluth as a corporation, made an assignment, under the insolvent laws of the state, for the equal benefit of all its creditors, to W. D. Underhill, garnishee and respondent in this cause. Due notice of the assignment was given to plaintiffs, who were creditors of the insolvent concern, and they duly appeared in the proceedings, and presented and filed their claim, together with a release thereof, executed in due form of law. On December 9, 1898, subsequent to the assignment and to the filing of such claim, plaintiffs commenced this action against William Stephen to recover upon the indebtedness so due from such corporation. The defendant is described in the summons and complaint, "William Stephen, doing business as Central Mercantile Company." Judgment was rendered against defendant on default January 19, 1899, for the sum of $267.14. Subsequent to the entry of the judgment, garnishee proceedings were instituted in the action, and said W. D. Underhill duly made garnishee. At the disclosure in February, 1899, the garnishee denied any indebtedness due defendant Stephen, but admitted that he had money and property in his hands belonging to the corporation. On the theory and claim that the corporation had no legal existence, and that the property in the hands of the garnishee in fact belonged to defendant Stephen, plaintiffs moved the court below for leave to file a supplemental complaint under G.S. 1894, § 5319, setting up such facts. The motion was denied on the merits, March 18, 1899, and no appeal was ever taken therefrom. Without obtaining leave of court to do so, plaintiffs, on August 4, 1899, again moved the court for leave to file such supplemental complaint, which was denied on August 19. The appeal under consideration is from this last order.
The motion was properly denied. A party to an action cannot be heard...
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