Wolf v. McKinley

• Citation: 68 N.W. 2,65 Minn. 156
• Decision Date: 17 June 1896
• Docket Number: 10,027--(166)
• Parties: JOSIAH WOLF and Others v. WILLIAM McKINLEY and Others
• Court: Minnesota Supreme Court

68 N.W. 2

65 Minn. 156

JOSIAH WOLF and Others v. WILLIAM McKINLEY and Others

Nos. 10,027--(166)

Supreme Court of Minnesota

June 17, 1896

Appeal by plaintiffs from an order of the district court for St Louis county, Ensign, J., denying their motion for appointment of a receiver in proceedings supplementary to execution of the unexempt property of William McKinley judgment debtor. Affirmed.

The order appealed from is affirmed.

Wilson & Wray and J. L. Washburn, for appellants.

Billson Congdon & Dickinson, for respondents.

OPINION

CANTY, J.

The complaint in this action was on file in the clerk's office more than 20 days after the action was commenced, and before the judgment against defendants for the recovery of money was entered. Thereafter an execution was issued, and returned unsatisfied. Thereupon an affidavit and order in supplemental proceedings were made, and served on the judgment debtor; and within three days thereafter, to wit, on February 15, 1894, he made an assignment for the benefit of his creditors, under the insolvency law of 1881. ^[2] The question involved in this case is whether the lien on his property acquired by the commencement of the supplemental proceedings was dissolved by such assignment. The trial court held that it was, and denied a motion made in the supplemental proceedings, on the disclosure of the judgment debtor, for the appointment of a receiver. From the order denying the same, plaintiffs appeal.

We, also, are of the opinion that the assignment dissolved the lien acquired by the supplemental proceedings. At the time in question, the first section of the insolvency law (G. S. 1894, § 4240) read as follows:

"Whenever any debtor shall have become insolvent, or garnishment shall have been made against any debtor, or property of any debtor shall have been levied upon by virtue of an attachment, execution, or legal process issued against him for collection of money, he may make an assignment of all his unexempt property; * * * and such assignment, if made within ten days after garnishment shall have been made against the assignor, or within ten days after property of such assignor shall have been levied upon by virtue of an attachment, execution, or other legal process against him for collection of money, as aforesaid, shall operate to vacate every garnishment and levy then pending: * * * provided, however, that such assignment shall not vacate or affect any levy made by virtue of an execution issued on a money judgment entered against such debtor on a complaint which was on file during at least twenty days next prior to entry of such judgment in the court in the county where the defendant resided meanwhile." (This last proviso was stricken out by Laws 1895, c. 66.)

We are of the opinion that, within the meaning of this section, "legal process issued against him for collection of money" includes the statutory process of supplemental proceedings; and the institution of such proceedings to reach the concealed property of the judgment debtor is a levy of that process, within the meaning of that section. "Process" does not necessarily mean "writ" or "summons," but is often used in the sense of "proceedings." Hanna v. Russell, 12 Minn. 43 (80).

Appellants contend that the doctrine of ejusdem generis should be applied...