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made to appear there, nor has it been 8. A finding by the trial court, in such an acshown here, that there was anything in tion, that a deed executed by an insolvent, when It which affected or would preclude a re- in failing circumstances, to a non-resident grantee, covery upon the bond by plaintiffs. It did was not in fact delivered till more than a year after not and does not now appear that either after the assignment in bankruptoy, is sufficient,
its execution, and a long time after its record, and of the plaintiffs signed or verified any of as against an attack in an independent proceeding the pleadings in the action referred to, or to support a judgment setting aside the deed as have ever had any knowledge of the alle fraudulent and void. gations therein, or that, from any cause,
4. A slight variance in the spelling and prothey became so far' bound by any of their nunciation of the name of the defendant in a pubpleadings as to raise the presumption that lished summons held not to be misleading, and not
fatal to the jurisdiction of the court. GILPILLAN, Its allegations of fact were authorized by
C. J., dissenting. them. Under such circumstances, there 3. An affidavit of publication which states that was no error in the ruling which excluded the summons was published "seven” weeks, once the pleading offered, or the one intended a week, the dato of the first and last publication to be offered, in evidence. Siebert v. being shown, from which it appears that six weeks Leonard, 21 Minn. 442; Vogel v. Osborne
was intended, is sufficient, under the statute. 82 Minn. 167, 20 N. W. Rep. 129. Order af
6. Where the summons, as published, contains firmed.
the requisites of process to bring the party into
court, formal defects therein will not prevent ju(43 Minn. 160)
risdiction attaching, any more than in cases of SCHROEDER V. HARRIS et al. .
personal service, il publication thereof is shown
by the record to have been authorized, and to have (Supreme Court of Minnesota. April 16, 1890.) been made and completed in conformity with the APPRAI-DISMISSAL-HARMLESS ERROR.
statute. From a careful examination of the record in
(Syllabus by the Court.) this action, it is manifest that the proceedings in Appeal from district court, Hennepin justice's court, which resulted in a judgment
county ; SMITH, Judge. egalost this appellant, were regular and suficient
F. C. Stevens and Cobb & Wheelwright, in every particular. Hed that, even if the district court orred in dismissing an appeal upon
(A. J. Shores, of counsel,) for appellant. questions of law alone, instead of anirming said Hawley & Hall, (Charles H. Woods, of fudgment, (on which no opinion is expressed,) the counsel,) for respondents. error was without prejudice. (Syllabus by the Court.)
VANDERBURGH, J. On the 13th day of
February, 1874, one Joseph Hodges, an inAppeal from district court, Becker coun- solvent, filed his petition in bankruptcy ty: Mills, Judge.
and was duly adjudged a bankrupt by the W. W. Rossman and Jeff H. Irish, for
district court of the United States for the appellants. C. M. Johnston and Walter J. district of Minnesota, and such proceedTrask, for respondent.
ings were thereupon had in that court
that one William E. Hale was duly apCOLLINS, J. Appeal from an order of the pointed the assignee of the bankrupt, and district court dismissing an appeal, upon the register in bankruptcy, on the 15th day questions of law alone, from a judgment of June, 1874, conveyed and transferred to rendered in justice's court. We have care
him all the property, real and personal, fully examined the very full and complete that the bankrupt was owner of, or in any record of the proceedings in the trial court, way entitled to, on the day his petition and it is manifest that no error can be was filed; and the deed of assignment was found therein. If, therefore, the district duly recorded. On the 1st day of Decem
, court committed a mistake in dismissing ber, 1873, the bankrupt had filed with the
, the appeal, as to which we express no register of deeds of Hennepin county a opinion, it was without prejudice to the
deed of the premises in controversy here, appellant. Instead of having the justice's duly executed in form, by himself and judgment affirmed, as it should have been
wife, to the plaintiff herein, a relative of on the record, there was simply a disming
his wife, bearing date May 25, 1873, in al of the appeal. Or this result the appel.
which the consideration expressed was the lant ought not to complain. Order al- sum of one dollar; and such deed was firmed.
thereupon duly recorded. It is admitted (minn. 137)
that the title was in the grantor, Hodges, LANE V. INXEB et al.
at and prior to the date of the deed. The
plaintiff herein, grantee in such deed, was (Supreme Court of Minnesota. April 8, 1890.)
then, and has since continued to be, a nonBANKRUPTCY – FRAUDULENT CONVEYANCES - SUM- resident of the state of Minnesota. On the MONS-PUBLICATION-COMMON PLEAS.
15th day of August, 1874, Hale, the as1. By the act creating the court of common signee, commenced an action in the court pleas of Hennepin county, (Laws 1873, c. 177,) that of common pleas in and for the county of wurt was given equal and concurrent jurisdiction Hennepin, against this plaintiff for the with the desilot court in that county, and the same statutory procedure was applicable alike to each.
purpose of setting aside the deed we have 2. An assigneo in bankruptcy, under the gen
referred to, and having it adjudged frauducral bankrupt act of 1867, was entitled to bring an lent and void as against the assignee sotion in the state courts to set aside fraudulent claiming title to the property in question con veyances made by the bankrupt. Such an ao in trust
for the creditors of the bankrupt, tlon Involves no federal question. It is an action and, among other things, it was alleged in rem, and its object is to reach the property fraudulently disposed of, and apply it to the satis
and charged in the complaint that the faction of the debts of the bankrupt, and properly
deed was never delivered to the grantee, belongs to that class of actions in which service by
defendant, until long after it was republication may be made upon non-resident defend- corded ; that it was made by Hodges in aute
contemplation of his bankruptcy, and
when he was insolvent, and was made and that chapter had been served either peraccepted with a view to prevent the prop-sonally or by publication. And, iu like erty in question from coming to the as- manner, a plaintiff would be entitled to signee in bankruptcy, and to prevent the apply for judgment in the court of comsame from being distributed in accordance mon pleas under section 210, and that court with the bankrupt act; and for the pur- would have the same power to act as the pose, and with the intent, of hindering, district court, and under the same statudelaying, and defrauding the creditors of tory procedure. the bankrupt of their lawful claims; and 2. It is also claimed that the court had that he was at the date he was so ad- no jurisdiction of an action brought by judged bankrupt, and long prior thereto an assignee in bankruptcy to set aside a had been, the owner of the property, and fraudulent conveyance of his land by a that by virtue of the assignment it had bankrupt. The action is not in contrapassed to the assignee, the plaintiff in that vention, as we understand it, of any Unitaction. Such proceedings were thereafter ed States statute; and we are unable to had in that action that on the 30th day of discover any valid reason why the asJune, 1876, a judgment was duly rendered signee claiming the
signee claiming the property may not therein in favor of the plaintiff, as as- / bring such action in the courts of the state signee, against the defendant, (plaintiff within whose jurisdiction the property is here,) wherein and whereby it was ad- situated. Such an action presents no fedjudged that the deed from Joseph Hodges eral question. Mann v. Flower, 25 Minn. to this plaintiff, before referred to, of the 500; Kidder v. Horrobin, 72 N. Y. 159; MCpremises in question, “be, and the same is Kenna v. Simpson, 129 U. S. 510, 9 Sup. Ct. hereby, vacated and set aside, and declared Rep. 365. to be null and void, and of no effect, and 3. By section 5046, Rev. St. U.S., all propthat the defendant in that action, and erty conveyed by the bankrupt in fraud of every person claiming under her subse- bis creditors shall, by virtue of the adjudiquent to the recording of the notice of the cation of bankruptcy and the appointment pendency of the action, be and are forever of his assignee, be at once vested in such barred from asserting any title to the assignee. A judgment creditor claiming premises as against the title of the plain- a lien upon the real property of his debttiff therein." A certified copy of the judg- or may bring an action to remove the obment and decree was recorded in the office struction caused by a fraudulent conveyof the register of deeds, on the 1st day of ance before selling the property, or he may July, 1876. Upon the facts found by the acquire title by execution sale, and then trial court in this action the appellant bring his action. Jackson v. Holbrook, raises several objections to the validity of 36 Minn. 499, 32 N. W. Rep. 852; Wadsthe judgment above referred to, in favor worth v. Schisselbauer, 32 Minn. 87, 19 N. of the assignee in bankruptcy, under W. Rep. 390. The object is to remove the whom the defendant, through several obstruction, or uncover the property, so mesne conveyances, claims title.
that it may be disposed of at the best 1. The service of the summons was by price, and the proceeds appropriated to publication, and the judgment was ren- the satisfaction of the demands of creddered upon proof thereof, and upon the itors. That is substantially the nature plaintiff's application, in default of any of the action brought by the assignee appearance or answer of the defendant in against this plaintiff. Heidritter v. Oilthat action. The plaintiff claims that the cloth Co., 112 U. S. 300, 5 Sup. Ct. Rep. 135; statutory procedure in the district court In re Gurney, 7 Biss. 414; Rinchey v. Strykwas not made applicable to the court of er, 28 N. Y. 45, 31 N. Y. 140. The action
. common pleas, and hence that the pro- was not then an action in personam, but ceedings for the service of the summons, must be classed with actions in rem. The and the judgment in that court, were with- judgment sought to be recovered therein out authority of law. But we think other- affects the land only, and it was an action wise. The requisite authority of the court where service by publication upon the nonis clearly implied from the language of the resident defendant was proper, and one first and ninth sections of the act creating which falls within the provisions of subthe court of common pleas of Hennepin division 5, § 64, c. 66, Gen. St. Pennoyer county, by which it is given equal and v. Neff, 95 Ú. S. 733. See Bennett v. Fenton, concurrent jurisdiction with the district 41 Fed. Rep. 283. court in all cases arising or triable in Hen- 4. It is further insisted by counsel that nepin county; and the court, judge, and the findings of the court of common pleas clerk are given like jurisdiction, power, in that action do not support the judgand authority in all proceedings therein, ment. In considering this and several and shall perform the same duties as the other objections to the validity of the district court judge and clerk. These pro- judgment, the distinction between errors visions are to be liberally construed so as and defects which go to the jurisdiction, to give them full effect in their practical and render the proceeding wholly void operation, which could only be under the and of no effect, and such as must be remsame statutory procedure provided for edied in the same proceeding by appeal or the district court in both civil and crimi. otherwise, must be carefully observed. nal cases; none being specially provided Salter v. Hilgen, 40 Wis. 365, 366. It is not for in the common pleas. No other con- enough that there are irregularities in struction would be reasonable or toler- practice, or unsubstantial variances beable. The common pleas as well as the tween the summons and complaint, or district court would acquire jurisdiction that the pleading is double, or improperly of a defendant, under section 69, c. 66, Gen. unites several causes of action, or contains St., when the summons provided for in more allegations or grounds for relief than is essentlal, or that the complaint is pear; but the error is clerical, and it apdefective or incomplete, or that the find-pears sufficiently clear that it was pubings of thecourt fail to cover all the issues lished six full weeks, successively, "once a tendered. If the matters determined are week.” decisive of the case, and within the general 7. A further error or irregularity in rescope of the allegations made, and relief spect to the form of the summons as pubanked, the determination is not void, lished is also claimed to be fatal. The though the defendant has not appeared. summons and complaint appear to have Dillon v. Porter, 36 Minn. 341, 31 N. W'. been issued together, and placed in the Rep. 56; Herrey r. Walsh, 38 Minn. 522, 38 hands of the sheriff of Hennepin county for
. X. W. Rep. 613; Peck v. Railroad Co., 85 X. service upon the defendant. On the 18th Y. 231; Glitt v. Truax, 27 Minn. 520, 8 N. day Angust, 1874, he made his return that W. Rep. 767. Recurring to the allegations the defendant could not be found in that in the complaint in the former suit, which county; and the summons and complaint, we have referred to, and which are taken with the return thereon, were both duly from the findings of the trial court in this filed in the office of the clerk of the court cnne, It is clear that they are sufficient to of common pleas in the county of Hennepin uphold a judgment for the relief asked, viz., on the 20th day of August, 1874. The sumto Net aside the deed as fraudulent and mong was in the following form: "State void an against the assignee who reprenrnt- of Minnesota, county of Hennepin. Court ed the creditors of the Insolvent gruntor. of Common Pleas. William E fale, as AsThe findings of fact in that case were not signee of Joseph Hodges, a bankrupt, Piff., necessarily inconsistent with the com- Vs. Berlah M. Plimpton, Dit. Summons. plaint, though imperfect, and made, per- Thertate of Minnesota to the above-named haps, upon a wrong theory. Among oth- defendant: You are hereby summoned er things, the deed, purporting to bear and required to answer the complaint of date more than a year before its delivery the plaintiff in the above-entitled action, to plaintiff, is found not to have been de- which is hereto attached and served on livered till after the insolvent had been de you, and to serve a copy of your answer clared a bankrupt, and his property an- to the said complaint on the subscriber at signed, though previously recorded; and his office in Minneapolis, in the county of he himself placed the same upon record Hennepin, in said state, within twenty long after he became in fact insolvent, and days after the service of this summons on when he was owing a large amount of in- | you, exclusive of the day of such service; debtedness. This would justify the legal and if you fail to answer the said complaint conclusion that the deed was fraudulent within the time aforesaid the plaintiff in and sold as to the plaintiff Hale, (In re this action will apply to the court for the Gurney, 7 Biss. 414; Robinson v. Elliott, relief demanded therein, together with 22 Wall. 514:) and it is not material that costs and disbursements of this action. the evidence and finding made a stronger W. E. HALE, Plaintiff's Attorney. Dated care in respect to the time of the delivery August 15, A. D. 1874.” The affidavit for than is stated in the complaint. The effect the publication of the summons was in all of the judgment subsequently rendered respects in due form us required by the was to set aside the dead, and to declare statute, and all the conditions precedent the same null and vold; and this would to an authorized and lawful publication of enable the assignee to give a clear title.
the summons were complied with. It will We do not see that the form of the judg. be observed that the provisions of the stat- . ment is prejudicial to the plaintiff. As re- ute for the publication of the suni mons spects her rights, It is not material that contain no direction as to the form or conthe deed should be declared void as to tents of the summons, or the notices to be creditors, instead of being declared void inserted therein as published. In this regenerally. The error could only be cor- spect, it differs from the statutes of New rected by proceedings in the same action. York and other states under which certain
5. In the published summons in that ac- decisions cited by appellant were made. tion there was a clerical mistake in the For instance, the New York Code prorided spelling of plaintiff's namo, cnused by the that in cases of publication “the complaint change of a single letter. Her name was murt first be fled, and the summons as then Beulah M. Plympton. As printed, it published inust state the time and place of read " Berlah M. Plympton." In the judg- such filing." The Wisconsin statute was ment of the trial court, this was not substantially similar to that of New York. deemed so material a change us to be mis- Rev. St. 1858, c. 124, § 10, subd. 5; 2 Tayl. leading. And we think this will be suff- St. c. 124, 12. The California statutes in clently apparent when the two names are relation to the summons and service thereplaced in juxtaposition. The plaintiff, or of are also essentially different from ours. any one knowing her, could hardly mis- After a careful consideration of the subject, takr as to the person intended. Seaver v. we think the importance of the omission Fitzgerald, 23 l'al. 92, 93; Stevens v. Steb- is exaggerated by the plaintiff, and that it bins, 3 Scam. 25; Belton v. Fisher, 44 Ill. does not go to the jurisdiction, but must 82; Stewart v. State, 4 Blackf. 171; Schooler be treated as an irregularity in practice. v. Anherst, 13 Amer. Dec. 233, note; Mallory The essential requisites of a summons, as v. Rikga, 39 N. W. Rep. 886.
answering the purpose of process, are pre6. The proof of the publication of the sum- scribed by Gen. St. c. 66, § 53, and these are mons is, we think, sufficient, though there all found in the summons in question, while Is a clerical error here, also: the afldavit sections 54 and 55 provide that the sum
; stating a publication of " seven " instead of mons shall also contain certain notices and "slx" weeks between the dates of the first directions regulating the practice. See Mcand last publications, which distinctly ap- Coun v. Railroad Co.,50 N. Y. 177, 178. Had
this summons been personally served on How. Pr. 468; Waltz v. Borroway, 25 Ind.
“Berlah" instead of the true name, “Beu-
ice. Onename is not idem sonans with the the complaint is filed will not be consid- other. ered such an irregularity as would affect a
(43 Minn. 155) substantial right, or subject a judgment CITY OF DULUTH V. HENEY et al. rendered by default to attack in another proceeding. Foster v. Wood, supra. And
(Supreme Court of Minnesota. April 16, 1890.) 80, if, under the section providing for serv
CONTRACTOR'S BOND-RELEASE OF SURETIES. ice by publication, the residence of the de
Upon the completion of the work provided fendant had been known, and a copy of
for in the contract mentioned in Bank v. Heney, 40 the summons, which is all that the statute
Minn. 145, 41 N. W. Rep. 411, the city settled with requires to be mailed, had been sent to her
the contractors, the principals in the bond which
was construed in that case, and paid them in full. through the post-office, and had been re
This action was brought by the city, for the use ceived by her, as would be presumed until and benefit of the plaintiff in the former suit and the contrary appeared, it would hardly be another person, upon said bond. Held, that the claimed that the service was a nullity.
sureties thereon were not released or discharged But the statutory requirements in respect
from the obligation of the bond by reason of pay
ment in full to the contractors. to the publication of the summons are the same whether the residence is known or
(Syllabus by the Court.) not. The statute fixes the time for an
Appeal from district court, St. Louis swering the complaint, which is to be
county; STEARNS, Judge. stated in the summons, but a variance in White & Reynolds, for appellant. Willthis respect is held to be an irregularity iam B. Phelps, for respondents. merely. Thus a summons requiring a defendant to answer in 20 days, where the COLLINS, J. This is an action by the law, gave 90 days, was sustained, because city, obligee, upon the bond considered in the party was presumed to know his rights Bank v. Heney. 40 Minn. 145, 41 N. W. Rep. under the law, and the mistake did not af- 411, and to recorer for the use and benefit fect the substantial rights or remedies of of the owner, said bank, upon the claims the defendant. Porter v. Vandercook, 11 which it attempted to collect in the former, Wis. 70; Morgan v.Woods, 33 Ind. 24; Grib- case; and also to recover for the use and bon v. Freel, 93 N. Y. 95; Gould v. John- benefit of Duncan, Gamble & Co., who furston, 24 Minn. 190. That matter, as well as nished the same, the value of certain mathe nature of the notice in the summons in- terials which were sold to the principals in forming the defendant of the particular said bond, and used by them in fulfilling judginent or relief that will be taken or ap- the contract referred to in the opinion plied for, in default of an answer, is not supra. At the conclusion of the trial a vermodified or controlled by the section pro- dict was ordered and rendered in favor of viding for publication, so that mistakes two of the respondents, the sureties upon therein would not necessarily vitiate the said bond. The appeal is from an order published summons, though in some cases refusing a new trial. In the decision bethey might in practice be quite as mislead- | fore mentioned the bond in question was ing to the defendant as the error or omis- construed as intended, among other things, sion complained of here. In Gribbon v. to secure the payment of laborers who Freel, 93 N. Y.95, the defect was in the pub- | might be employed by the contractor, and lished summons. It is true there was serv- the payment of those who might furnish ice outside the state, but the proceeding materials to be used in the performance of was regulated by the statute authorizing the contract. It was further determined publication, in respect to the form of the that the city, as the obligee named in the published summons.
Trust Co. v. Bulmer, bond, could alone maintain an action upon 49 N. Y. 85. Here the summons clearly dis- | it to enforce the collection of claims held closes the court in which the suit was by either laborers or material-men. But the brought, and in which the answer to the respondents now contend that by reason complaint therein must be served, and the of certain provisions to be found in the names and residence of the plaintiff's at- contract between the city and the princitorneys. The defendant could hardly be pals in the bond, under which the work misled in any particular. Formal defects
was performed, and because upon the comin a summons served by publication upon pletion of the work the city paid to the a non-resident will not prevent jurisdiction contractors the full amount due then upon attaching any more than in other cases, if the contract, the sureties upon the bond such service is shown by the record to have have been released and discharged, and, as
, been authorized, and to have been com- against them, no recovery can be had. In pleted by the publication required by the other words, that under the contract it statute. Armstrong v. Middlestadt, 36 N. was the duty of the city to withhold payW. Rep. 151; 1 Abb. New Pr. p. 386, § 24; ment to the contractors until satisfied in Loring v. Binney, 38 Hun, 155, 156; Morgan some manner that all claims for labor perv. Woods, 33 Ind. 24; McCully v. Heller, 66 | formed, or materials furnished, had been
liquidated; and that, if the city has failed | the answer contained no allegation under
(43 Minn, 18€)
LIEBERMAN v. ISAACS et al. shall be completed in the manner agreed (Supreme Court of Minnesota. April 24, 1890.) upon, and such completion certified to by SALE-TIME OF DELIVERY - SUFFICIENCY OF Evithe engineer and inspector in charge, nor
DENCE, until each and every of the stipulations
Findings held to be justified by the evidence. previously mentioned in the contract has
(Syllabus by the Court.) been complied with. Whereupon the city agrees to pay, on or before the 15th day of Appeal from municipal court of Minnethe month next succeeding that in which apolis; MAHONEY, Judge. the work is done, 85 per cent. of the Frederick B. Lathrop, for appellants. monthly estimate. The remaining 15 per | Merrick & Merrick, for respondent. cent. In to be retained until the contract is fully completed and the work accepted. MITCHELL, J. Action to recover damThere is also in the contract the customary ages for the breach of a contract for the agreement on the part of the contractors sale of a quantity of old iron by defendthat all claims for labor and materials | ants to plaintiff, and the question is shall be promptly paid. The conditions of whether the decision of the trial court was the bond are plain, and now beyond con- | justified by the evidence. It will be found, troversy; and conceding it to be within upon an examination of the evidence, that the power of the city to use any language the whole case turned upon the question in iis contracts, or to perform any act, when, according to the agreement of the whereby the rights of those for whose ben parties, the property was to be delivered eft the bond is required and executed may and paid for. It is unnecessary to consider be jeopardized or lost, we fail to discover how far, if at all, oral testimony was adany stipulation or condition in the con- missible to explain or supplement the writtract from which even an inference can be ten memorandum of the bargain executed drawn that the city assumed, or that there by the parties on July 26, 1889, as such eviwas cast upon it, the duty of seeking out dence was introduced by both parties withthe various laborers and material-men who out objection. The original agreement, contributed to the completion of the con- which was oral, was that the iron was to tract, and ascertaining the #tate of their be delivered on the cars at Minneapolis on accounts with these contractors, before Saturday, July 27th, and the following making final and complete payment for the Monday, and paid for on delivery. Subwork. It is barely possible that the au- sequently the plaintiff's agent, with whom thorities would have been justified in re- the business was transacted, was called fusing payment until it had been made to by telegram to Chicago, and he informed appear that there were no outstanding the defendants that he could not attend to clalms; but we are asked to go further than the shipment of the iron until his return, this, and to say that as to all contracts and, in view of this, the written memoranfor street grading there has been imposed dum referred to was executed. Both parupon the city of Duluth an obligation to ties agree that the time for the delivery of, see to it that all Inborers employed upon and payment for, the property was postthe work, and all material-men with whom poned until the return of plaintiff's agent the contractors have dealt, have been fully from Chicago, but they flatly contradict paid, before settling with the latter; and each other as to when this was to be. Dethat during the progress of the improve- fendants swear positively that it was exment it must retnin in its hands a sufh. pressly understood that the agent was to cient amount of the money earned to meet return and receive and pay for the iron and discharge demands of this character on the following Monday or Tuesday, There is nothing in the charter, nor in the (July 29th or 30th.) On the other hand, contract itsell, which suggests that such the agent swears in substance that he an extraordinary task has been assigned told defendants that he would not return to or assumed by the municipality, and, for two or three weeks, and that it was in should the views and construction de view of this delay that the written memmanded by the respondents be adopted, the orandum of the bargain was made. This utter Impossibility of the carrying on of was the pivotal question in the case, for street Improvements by a city of any size, the agent did not return until August 12th, with any degree of safety, under the con- when he found that defendants had previtract system, seems obvious. The respond-ously disposed of most of the iron to other ents make the further point, as to å por parties. If the agreement was that the tion of the claims, that by accepting the property was to be taken and paid for by so-called "time-checks" the laborers ex- plaintiff not later than July 29th or 30th, of tended the day of payment for their work course defendants were not bound to keep heyond that originally agreed on, without it for him until August 12th. On the other the knowledge of the suretles on the bond, hand, if, as plaintiff claimed, it was the and hence the latter are discharged from understanding that he was not to come the llability theretofore existing. Upon for the property for two or three weeks this we shall only say at this time, that I from July 26th, then the trial court would