Tripp v. Northwestern National Bank

• Decision Date: 13 February 1891
• Citation: 48 N.W. 4,45 Minn. 383
• Parties: William H. Tripp v. Northwestern National Bank
• Court: Minnesota Supreme Court

48 N.W. 4

45 Minn. 383

William H. Tripp v. Northwestern National Bank

Supreme Court of Minnesota

February 13, 1891

Appeal by plaintiff, assignee in insolvency of the Empire Coffee & Spice Company, from a judgment of the district court for Hennepin county, entered pursuant to the decision of Hicks J., before whom the action (brought to recover $ 4,110.50) was tried without a jury.

Judgment reversed.

W. E Akers, for appellant.

Keith Evans, Thompson & Fairchild, for respondent.

OPINION

Mitchell, J. ^[1]

This case was here on a former appeal from a judgment in favor of the defendant on the pleadings. 41 Minn. 400, (43 N.W. 60.) The action was brought by the plaintiff as assignee of an insolvent debtor under chapter 148, Laws 1881, to recover money paid to the defendant by the insolvent in payment of a pre-existing debt, and which is claimed to have been an unlawful preference of defendant over other creditors. Plaintiff demanded a jury trial, which was denied by the court. This was clearly error. Whatever surplusage there may be in the allegations or prayer of the complaint, the action was strictly and solely one for the recovery of money only, proceeding according to the course of the common law, and as such the plaintiff had a right to have the issues tried by a jury. The fact that the right of action is one that is given by statute is not material. Neither is an action of this kind a part of the insolvency or bankruptcy proceedings, any more than an action brought by a personal representative to recover a debt due the estate of his decedent would be a part of the administration proceedings in the probate court.

It is urged, however, that the error was without prejudice, because it appears that the assignment under which plaintiff claims was void, for the reason that the resolution passed by the board of directors of the insolvent corporation on February 3d, authorizing its officers to make an assignment of all its assets for the equal benefit of all its creditors, only authorized the making of a common-law assignment, and not one under the insolvent law of 1881, because the fact which would authorize the making of an assignment under the act referred to (the attachment of the insolvent property) did not occur or exist until February 4th. There is nothing in this point for two reasons: First, the matter is res adjudicata in this case. The question was involved in the former appeal, as all the facts referred to appeared then, as well as now, upon the face of the pleadings; and, although the particular reason now urged why the assignment was void was not then urged or brought to the attention of the court, yet it might have been. Therefore the validity of the assignment, upon all the facts appearing upon the face of the pleadings, must be deemed the law of this case. But, even if the question was still an open one, the point is without merit. The resolution of the board of directors was broad enough to authorize the officers to make an assignment under the law of 1881, if the exigencies of the business of the corporation required it. After its property was attached, it was the clear duty of the insolvent corporation to make just such an assignment as was made in this case. Had it not been made, a receiver might have been appointed under the...