Tabour Realty Co. v. Nelson

• Decision Date: 31 January 1930
• Docket Number: No. 6623.,6623.
• Citation: 56 S.D. 405,228 N.W. 807
• Parties: TABOUR REALTY CO. v. NELSON, Circuit Court Clerk, et al.
• Court: South Dakota Supreme Court

56 S.D. 405

228 N.W. 807

TABOUR REALTY CO.

v.NELSON, Circuit Court Clerk, et al.

No. 6623.

Supreme Court of South Dakota.

Jan. 31, 1930.

Appeal from Circuit Court, Brown County; Robert D. Gardner, Judge.

Action by the Tabour Realty Company against N. E. Nelson, Clerk of the Circuit Court of Brown County, and another. From a judgment for defendant and an order denying a new trial, plaintiff appeals. Reversed and remanded.Amos N. Goodman, of Aberdeen, for appellant.

Van Slyke & Agar, of Aberdeen, for respondents.

BROWN, P. J.

In April, 1916, First National Bank of Aberdeen commenced a mortgage foreclosure action against S. H. and Emma A. Cranmer involving real estate in the city of Aberdeen. Service was made upon the Cranmers in Minneapolis, and no appearance was made by either of them in the action. Fred Gannon was appointed receiver to collect the rents and profits and apply them to plaintiff's demand.

In November, 1916, judgment of foreclosure by default was entered. The mortgaged premises were sold, and, after expiration of redemption period, a sheriff's deed was obtained and the mortgage debt satisfied. The receiver made a report to the court on which a hearing was had, and on September 4, 1918, the court entered a final order approving the report, finding that there was a balance in the hands of the receiver of $1,608.98, and ordered that sum to be paid over by the receiver to the Cranmers. The bank asked and obtained a stay of proceedings for 20 days within which time to perfect an appeal from this order. Why the bank would have any interest in appealing after its mortgage debt had been satisfied is not apparent, and it took no appeal. But on September 28th, the day after the stay period had expired, J. H. Suttle, an officer of the bank, attempted to commence an action against the Cranmers to recover a balance which he alleged to be due him from them, and in that action garnished Gannon. The attorneys for the bank in the foreclosure action were attorneys for Suttle in his garnishment action. The summons in the action was served on the Cranmers in Minneapolis on November 30, 1918. They made no appearance in the action, and on May 12, 1919, judgment by default was rendered against them for the sum of $1,394.16, and Gannon as receiver was ordered to pay the $1,608.98 in his hands to the clerk of the courts, which he did, and thereupon the clerk of courts delivered $1,394.16, plus $10.73 costs, making $1,404.89, of the sum to Suttle, leaving a balance in his own hands of $204.09. On January 2, 1918, the Cranmers made an assignment to Tabour Realty Company of all moneys in the hands of Gannon, as receiver, and transferred to said company all claims and demands and rights of action which they might have against the receiver for the recovery of any funds in his hands. On April 26, 1921, for the purpose of confirming said assignment, the Cranmers assigned to Tabour Realty Company the judgment and order of the circuit court of September 4, 1918, adjudging that the receiver pay to the Cranmers the sum of $1,608.98, and all sums due them under such judgment. A copy of said judgment was served upon the receiver upon September 9, 1918, and on October 28, 1918, a written demand was made upon him for payment of the money to plaintiff, which demand was refused. The present action to recover the sum of $1,608.98 was begun on August 23, 1920, and, on trial to the court without a jury, findings and judgment were in favor of defendants, and, from the judgment and an order denying a new trial, plaintiff appeals.

[1] On a former appeal in this case (49 S. D. 275, 207 N. W. 97) we held that “the only defense worthy of any consideration is that the assignment was made in fraud of creditors.” The pleadings have not been in any manner altered since, and that decision is the law of the case as to all questions involved and determined at that time. It was there held that plaintiff was not a party to the garnishment suit, and was therefore not bound by the judgment. Neither were the Cranmers or either of them bound by the judgment in that suit, nor was the garnishee in any way protected by that...