Walsh v. Byrnes

• Decision Date: 21 December 1888
• Citation: 39 Minn. 527
• Parties: PATRICK WALSH, Receiver, <I>vs.</I> TIMOTHY E. BYRNES and others.
• Court: Minnesota Supreme Court

Page 527

39 Minn. 527

PATRICK WALSH, Receiver,vs.

TIMOTHY E. BYRNES and others.

Supreme Court of Minnesota.

December 21, 1888.

The plaintiff, as receiver appointed in proceedings supplementary to an execution, brought this action in the district court for Hennepin county, to set aside certain conveyances alleged to have been made by the judgment debtor to the defendant Byrnes to defraud creditors. Defendants appeal from an order by Lochren, J., overruling their demurrer to the complaint.

Benton, Plumley & Healy, for appellants.

E. A. Campbell and J. E. Waters, for respondent.

VANDERBURGH, J.

The only ground of demurrer in this case is that the complaint fails to state facts sufficient to constitute a cause of action.

1. It is claimed that the complaint is insufficient because the facts establishing the jurisdiction of the court to appoint the plaintiff receiver are not more fully stated, and that his authority to bring the action does not appear. This objection is not tenable, under the present demurrer. To enable the defendants to raise this point, they ought to have specified therein the further ground that the plaintiff has not a legal capacity to sue. Viburt v. Frost, 3 Abb. Pr. 119; Bliss, Code Pl. (2d Ed.) § 409a. But, in any event, the complaint is, we think, sufficient to show that the plaintiff was duly appointed receiver, in proceedings supplementary to execution, after the rendition of the judgment described in the complaint, upon which it is alleged execution had been duly issued, and returned wholly unsatisfied. This judgment is also alleged, in substance, to have been duly rendered in the district court of Hennepin county, on the 14th day of May, 1885, against the defendant William A. Rogers, and in favor of Moses T. Salisbury, for the sum of $1,419.

2. This action is brought to set aside sundry alleged transfers and conveyances of property, real and personal, by Rogers to the defendant Byrnes, which plaintiff avers were made with the intent to defraud the creditors of Rogers, of whom Salisbury was one. These transfers were all made prior to the rendition of the judgment, and it is not alleged that the particular indebtedness or obligation for which the judgment was recovered was incurred before such alleged fraudulent conveyances; and the defendants contend that, for the purposes of this action, Salisbury is to be regarded as a subsequent creditor, and as such not entitled to relief against the fraud of the defendants. We presume the omission was an oversight in drawing the complaint, but we fail to discover any averments in the complaint going to show that the claim established by the judgment was subsisting at the dates of the conveyances. The only question in the case, then, is whether there is enough in the complaint to entitle plaintiff to any relief on account of the fraudulent conduct of the defendants, as therein set forth. Voluntary conveyances by an embarrassed debtor are prima facie fraudulent as to pre-existing creditors, and the presumption arises from the existence of the indebtedness, and hence the rule could not, in the absence of...