Wagner v. Farmers Co-Operative Exchange Company of Good Thunder
| Decision Date | 17 December 1920 |
| Docket Number | 22,059 |
| Citation | 180 N.W. 231,147 Minn. 376 |
| Parties | E. W. WAGNER v. FARMERS CO-OPERATIVE EXCHANGE COMPANY OF GOOD THUNDER AND ANOTHER |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to restrain defendants from selling plaintiff's membership in the Minneapolis Chamber of Commerce and to vacate a levy thereon under writ of execution. Plaintiff obtained a restraining order requiring defendants to show cause why they should not be restrained from taking further action with relation to the levy of execution, notice of sale and sale of plaintiff's membership in said chamber of commerce during the pendency of the suit. From an order, Steele, J., granting a temporary injunction, defendants appealed. Reversed.
Release from attachment -- jurisdiction over nonresident defendant who gives bond.
1. A nonresident defendant, by giving a bond to procure the release of certain articles attached, does not thereby appear generally, so as to give the court jurisdiction to enter a personal judgment against him, except to the extent that satisfaction thereof may be had from the bond standing as a substitute for the articles released.
Enforcement of judgment -- interference by another court.
2. The district court of one county may not interfere with process issued to enforce a judgment in an action in the district court of another county in the state, unless on the face of the record the judgment is void. Irregularities that make a judgment voidable merely, can be taken advantage of only in the court where the judgment was rendered.
No abandonment of action by delay in service of summons.
3. The action, wherein the judgment now sought to be attacked was rendered, was already begun, under the purview of section 7707, G.S. 1913, when the attachment therein was levied. Neither the attachment nor the action was, as a matter of law, abandoned by the delay in the service of the summons.
Attachment -- membership of nonresident in chamber of commerce.
4. The membership of a nonresident in the chamber of commerce of Minneapolis is property that may be attached, so as to give the court jurisdiction, when followed by the service of summons as prescribed by statute, to enter a judgment against such nonresident, valid insofar as it may be satisfied out of the membership attached.
Levy of execution upon property attached -- seat in chamber not a tool of trade.
5. The levying of an execution upon the property attached, both writs issuing in the same action, is not an interference with property in custodia legis. A nonresident owner of a membership in the chamber of commerce of Minneapolis cannot claim the membership exempt as a tool of his trade.
Ivan Bowen, LeRoy Bowen and S. B. Wilson, for appellants.
Chester A. Legg and Jamison, Swan, Stinchfield & Mackall, for respondent.
The appeal is from an order temporarily enjoining a sale of a membership of plaintiff in the Minneapolis Chamber of Commerce under an execution upon a money judgment against him, entered in the district court of Blue Earth county in favor of the appellant.
Plaintiff is a resident of Chicago, Illinois. He holds a membership in the Minneapolis Chamber of Commerce. A firm, composed of plaintiff and one Ernest Tietgens as partners, has for a number of years conducted a business upon the floor of the chamber in virtue of the right and privilege granted by plaintiff's membership. The firm also had an agent, L. R Nutting, doing business for it at Mankato. The appellant, the Farmers Co-operative Exchange Company of Good Thunder Minnesota, has during said time been a Minnesota corporation having its principal place of business in Blue Earth county, where, at the village of Good Thunder, it dealt in grains and farm products through its agent or manager, Emil Rosnow.
On April 26, 1919, there were issued and delivered to the sheriff of Blue Earth county the summons and complaint in an action brought in the district court of Blue Earth county, Minnesota, by this appellant, The Farmers Co-operative Exchange Company of Good Thunder, as plaintiff, against E.W. Wagner & Company, E. W. Wagner, Ernest Tietgen, L. R. Nutting and Emil Rosnow as defendants. The action was to recover for money and property, belonging to the plaintiff therein, which by means of alleged unlawful dealings or gambling transactions had come into the hands or control of the defendants. On May 8 a writ of attachment issued on the ground that the indebtedness claimed was fraudulently contracted and that the defendants, other than Rosnow, were nonresidents of this state. The writ was issued to the sheriff of Hennepin county, and he levied the same upon some office furniture in the chamber of commerce and upon a membership belonging to defendants or either of them in said chamber. A few days later E. W. Wagner & Company filed a $350 bond for the release of the office furniture attached, and it was released by order of court. After the levy upon the membership, the sheriff requested that the chamber of commerce furnish him with a certificate pursuant to section 4301, R.L. 1905, to which the response was that it had no property of defendants in its possession or control. Late in December the court evidently required the chamber of commerce to make a sworn return or certificate. This disclosed the membership standing in the name of E. W. Wagner. Thereupon the court made an order directing the chamber to retain the possession and control thereof pending the further order or disposition of the court. On December 29, 1919, the sheriff of Blue Earth county made a return on the summons that after due and diligent search the defendants, other than Rosnow, could not be found, and on the same day affidavit of nonresidency of defendants was made as provided by section 7737, G.S. 1913, and on December 31, 1919, the summons and complaint were served on the defendant E. W. Wagner at Chicago, Illinois, by handing true copies thereof to him personally. Wagner defaulted, damages were assessed by a jury, a judgment was entered against him on February 13, 1920, for $18,528.13, which, on June 5, was docketed in Hennepin county, and on the same day execution thereon was issued and delivered to the sheriff of Hennepin county, by virtue of which he levied upon this membership of E. W. Wagner in The Minneapolis Chamber of Commerce and duly gave notice that it would be sold at public auction. Thereupon E. W. Wagner brought this action in the district court of Hennepin county against the judgment creditor, The Farmers Co-operative Exchange Company, and the sheriff of Hennepin county to enjoin the sale and vacate the levy upon the membership. The company answered, setting up all the steps taken as hereinbefore recited, and claiming a valid judgment, to the payment of which the membership might be appropriated. It also made a proper demand for a change of venue to Blue Earth county.
We cannot sustain appellant's contention that respondent, as a defendant in the Blue Earth county case, made a general appearance when his firm filed the bond of $350 to obtain the release of the office furniture from the attachment. It is clear that appellant did not so understand, for it proceeded thereafter to serve the summons on respondent. The bond was a mere substitute for the office furniture (Slosson v. Ferguson, 31 Minn. 448, 18 N.W. 281), and the giving thereof conferred no jurisdiction over the nonresident defendants beyond the value of the property released.
Appellant further maintains that the district court of Hennepin county is without authority to interfere with process issued by the district court of another county. Respondent concedes that the action cannot be prosecuted in Hennepin county, unless the judgment in Blue Earth county is void on the face of the record. Irregularities in the action, which make the judgment voidable merely, can be taken advantage of only in the district court of this state rendering the judgment. No practice could tolerate an attack by a district court of one county in the state upon a judgment rendered in the district court of another county. The reasoning in State v. District Court of Chippewa County, 85 Minn. 283, 88 N.W. 755, seems to be in point. It is also decisive of the right of appellant to have the cause removed, since the sheriff was a mere nominal party.
Was the district court of Blue Earth county without jurisdiction as to the membership of respondent, and does that appear on the face of the record? In the complaint herein it is alleged that on May 8, 1919, appellant obtained a writ of attachment in the Blue Earth county case directing the sheriff of Hennepin county to attach all the property of defendants in said...
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