Suchaneck v. Smith

Supreme Court of Minnesota

Suchaneck v. Smith

54 N.W. 932, 53 Minn. 96, 1893 Minn. LEXIS 276

DecidedApril 27, 1893

StatusPublished

This text of 54 N.W. 932 (Suchaneck v. Smith) 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

Suchaneck v. Smith, 54 N.W. 932, 53 Minn. 96, 1893 Minn. LEXIS 276 (Mich. 1893).

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Opinion

Dickinson, J.

This respondent, the owner of certain real property which he had demised to the appellant for a term of years, instituted proceedings in the Municipal Court of the city of Minneapolis, pursuant to 1878 Gr. S. ch. 84, § 11, to recover possession of the premises, for default of the tenant in the payment of rent, and in the performance of other stipulations in the lease. Judgment was rendered for this respondent, and a writ of restitution issued, which was returned to the court by the sheriff as having been executed by him, by ejecting the tenant and putting the landlord in possession. Subsequently on motion made by the respondent, and supported by affidavit alleging the falsity of such return, and after hearing upon notice to the adverse party, that court by its order set aside the return with the writ upon which it was made, and granted an alias writ of restitution upon the judgment. This is an appeal from that order.

The only question of any importance presented,on this appeal is whether the Municipal Court had power to thus vacate the return, and to issue the alias writ.

By the law creating this court it is declared to be a court of record, and to have all the powers usually possessed by courts of record at common law, subject to statutory modifications, and with some limitations not necessary to be referred to. Except as otherwise provided, it is in terms vested with all the powers which are possessed by the District Courts of the state, and all laws of a general nature are made generally applicable to that court. It is declared to have full power and authority to issue all process, civil and criminal, necessary or proper to carry into effect the jurisdiction given to it by law, and its judgments and other determinations. Sp. Laws 1874, ch. 141.

It is not denied that the court had jurisdiction in the proceeding for unlawful detainer, and the validity of its judgment therein is [98]*98not called in question. In view of the extent of the power expressly-conferred upon the court as above indicated, it is considered that its action here in question was within its jurisdiction. The court had the general power of courts of record to correct its record of the proceedings, erroneous or wrongful, of its own officers, and to carry into effect its judgment for restitution. 1 Black, Judgm. § 161; Balch v. Shaw, 7 Cush. 282; Fay v. Wenzell, 8 Cush. 315; and see Berthold v. Fox, 21 Minn. 51, 55; D. M. Osborne & Co. v. Wilson, 37 Minn. 8, 9, (32 N. W. Rep. 786;) State v. Macdonald, 24 Minn. 48. The judgment being shown not to have been in fact executed, and it appearing that the record of its execution — the sheriff’s return — was false, the court had power, by amendment or by setting aside the false return, to conform the record to the fact. The judgment remaining unsatisfied, it was proper to issue an alias writ of restitution to carry it into effect.

Order affirmed.

Yanderburgh, J., did not take part in this decision.

(Opinion published 54 N. W. Rep. 932.)

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Dickinson, J.

This respondent, the owner of certain real property which he had demised to the appellant for a term of years, instituted proceedings in the Municipal Court of the city of Minneapolis, pursuant to 1878 Gr. S. ch. 84, § 11, to recover possession of the premises, for default of the tenant in the payment of rent, and in the performance of other stipulations in the lease. Judgment was rendered for this respondent, and a writ of restitution issued, which was returned to the court by the sheriff as having been executed by him, by ejecting the tenant and putting the landlord in possession. Subsequently on motion made by the respondent, and supported by affidavit alleging the falsity of such return, and after hearing upon notice to the adverse party, that court by its order set aside the return with the writ upon which it was made, and granted an alias writ of restitution upon the judgment. This is an appeal from that order.

The only question of any importance presented,on this appeal is whether the Municipal Court had power to thus vacate the return, and to issue the alias writ.

By the law creating this court it is declared to be a court of record, and to have all the powers usually possessed by courts of record at common law, subject to statutory modifications, and with some limitations not necessary to be referred to. Except as otherwise provided, it is in terms vested with all the powers which are possessed by the District Courts of the state, and all laws of a general nature are made generally applicable to that court. It is declared to have full power and authority to issue all process, civil and criminal, necessary or proper to carry into effect the jurisdiction given to it by law, and its judgments and other determinations. Sp. Laws 1874, ch. 141.

It is not denied that the court had jurisdiction in the proceeding for unlawful detainer, and the validity of its judgment therein is [98]*98not called in question. In view of the extent of the power expressly-conferred upon the court as above indicated, it is considered that its action here in question was within its jurisdiction. The court had the general power of courts of record to correct its record of the proceedings, erroneous or wrongful, of its own officers, and to carry into effect its judgment for restitution. 1 Black, Judgm. § 161; Balch v. Shaw, 7 Cush. 282; Fay v. Wenzell, 8 Cush. 315; and see Berthold v. Fox, 21 Minn. 51, 55; D. M. Osborne & Co. v. Wilson, 37 Minn. 8, 9, (32 N. W. Rep. 786;) State v. Macdonald, 24 Minn. 48. The judgment being shown not to have been in fact executed, and it appearing that the record of its execution — the sheriff’s return — was false, the court had power, by amendment or by setting aside the false return, to conform the record to the fact. The judgment remaining unsatisfied, it was proper to issue an alias writ of restitution to carry it into effect.

Order affirmed.

Yanderburgh, J., did not take part in this decision.

(Opinion published 54 N. W. Rep. 932.)

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54 N.W. 932, 53 Minn. 96, 1893 Minn. LEXIS 276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suchaneck-v-smith-minn-1893.

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