D. M. Osborne & Co. v. Thompson

Supreme Court of Minnesota

D. M. Osborne & Co. v. Thompson

33 N.W. 1, 36 Minn. 528, 1887 Minn. LEXIS 268

CourtSupreme Court of Minnesota

DecidedMay 5, 1887

StatusPublished

Cited by5 cases

This text of 33 N.W. 1 (D. M. Osborne & Co. v. Thompson) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

D. M. Osborne & Co. v. Thompson, 33 N.W. 1, 36 Minn. 528, 1887 Minn. LEXIS 268 (Mich. 1887).

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Opinion

Mitchell, J.

1. The plaintiffs never having attempted to collect this., note from the maker by due course of law, it was incumbent on them,, in order to recover from defendant, (who guaranteed collection,) to, prove that the maker was, at the maturity of the note, and still continued, so utterly insolvent that an action against him would be fruitless. Brackett v. Rich, 23 Minn. 485. We have examined the evidence on this point, and are of opinion that it supports the finding of the court that the maker had not been, from the maturity of the note, up to the commencement of this action, so utterly insolvent that an, action against him on the note would have been fruitless, if prosecuted with due and reasonable diligence.

2. Conceding that the question to witness Bennett, referred to in, first assignment of error, should have been whether the amount could have been collected of the maker by legal process, defendant was not. [529]*529prejudiced, because the answer of the witness (that he thought it could have been collected on execution) was competent, according to appellant’s own contention.

3. Even if the court erred in overruling plaintiffs’ objection to the question to the witness Chaney, referred to in the second assignment of error, it was error without prejudice, inasmuch as the answer of the witness could not have possibly harmed the plaintiffs.

Judgment affirmed.

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Mitchell, J.

1. The plaintiffs never having attempted to collect this., note from the maker by due course of law, it was incumbent on them,, in order to recover from defendant, (who guaranteed collection,) to, prove that the maker was, at the maturity of the note, and still continued, so utterly insolvent that an action against him would be fruitless. Brackett v. Rich, 23 Minn. 485. We have examined the evidence on this point, and are of opinion that it supports the finding of the court that the maker had not been, from the maturity of the note, up to the commencement of this action, so utterly insolvent that an, action against him on the note would have been fruitless, if prosecuted with due and reasonable diligence.

2. Conceding that the question to witness Bennett, referred to in, first assignment of error, should have been whether the amount could have been collected of the maker by legal process, defendant was not. [529]*529prejudiced, because the answer of the witness (that he thought it could have been collected on execution) was competent, according to appellant’s own contention.

3. Even if the court erred in overruling plaintiffs’ objection to the question to the witness Chaney, referred to in the second assignment of error, it was error without prejudice, inasmuch as the answer of the witness could not have possibly harmed the plaintiffs.

Judgment affirmed.

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Bluebook (online)

33 N.W. 1, 36 Minn. 528, 1887 Minn. LEXIS 268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/d-m-osborne-co-v-thompson-minn-1887.

Opinion

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