Lord v. Meachem

19 N.W. 346, 32 Minn. 66, 1884 Minn. LEXIS 84

• Court: Supreme Court of Minnesota
• Decided: May 1, 1884
• Status: Published

Opinion

Berry, J.1

Upon the uncontroverted statements of the assignee’s petition, and upon its own face, the first assignment involved in this case must be taken to be valid, in accordance with the views expressed by this court at this term. In re Mann, ante, p. 60. Under our statute, the assignee is not, by virtue of an assignment, garnishable in a suit against the assignor, unless, at the date of service of the garnishee summons, he has in his hands or under his control property, money, or effects belonging to the assignor, or owes the assignor some indebtedness absolutely, and without depending on any contingency. Gen. St. 1878, c. 66, §§ 167, 170-172. After the property, money, or effects are assigned, they no longer belong to the assignor, for the assignment passes the entire legal and equitable interest therein to the assignee. Donohue v. Ladd, 31 Minn. 244. That the assignment creates no such indebtedness as the statute cited speaks of, on the part of the assignee to the assignor, is apparent. To these statutory grounds for holding that the assignee is not garnishable is to be added the further insuperable objection that, under the assignment, the property is in custodia legis, and therefore not to be reached by levy or garnishment. Upon the whole subject of the non-garnishabilifcy of the assignee, we refer to In re Mann, supra; Legierse v. Pierce, (Texas Sup. Ct.) 17 Reporter, 477; Colby v. Coates, 6 Cush. 558; Dewing v. Wentworth, 11 Cush. 499; Drake on Attachment, § 251; Donohue v. Ladd, supra.

This brings us to the question of practice presented by the case, viz., whether a garnishment (in an action against the assignor) of an assignee holding under a valid assignment may properly be dissolved upon the assignee’s motion, without any formal disclosure, the validity of the assignment standing admitted. As the dissolution necessarily follows from the validity of the assignment, we can conceive of no reason why the motion is not entirely proper, nor why it should not be granted. It affords the assignee speedy relief from an indefensible embarrassment, and injures no one.

This disposes of the case before us, and renders it unnecessary for us to consider the status of the second assignment.

Order affirmed.

1 Dickinson, J., because of illness, took no part in this decision.