33 Minn. 530 | Minn. | 1885
The holding of this court (In re Mann, 32 Minn. 60,) that an assignment under our insolvent law is not invalidated by the fraudulent intent of the assignor, has recently been followed and sanctioned in Simon v. Mann, ante, p. 412, and we see no occasion to re-examine it. In the case at bar fraud is charged upon the as-signee as well as the assignor, and in that particular the defendant claims that it differs from In re Mann. But we agree with the trial court that the difference is unimportant, and that the principle of In re Mann is applicable to fraud of the assignee also. The considerations presented in the opinion in that case, except such as relate to the criminal or penal liability of the assignor, are entirely applicable to fraud of the assignee; and in addition to what is there said it is to be observed that, by section 9 of the insolvent law, the court in which
It remains to consider the effect of the action of the federal circuit court. It seems that, prior to the making of the assignment in question, the defendant, as United States marshal, by virtue of process of the circuit court, had attached the assigned property. The plaintiff (the assignee) made application to the circuit court to be permitted to intervene in the action in which the attachment issued, and to become a party defendant therein, and for the dissolution of the attachment. Upon a hearing, leave to intervene and become a defendant was granted, but the motion to dissolve the attachment was denied. It is contended by defendant, if we understand him, that the order refusing to dissolve the attachment was a species ol judgment in favor of his right to hold the goods attached under the writ of attachment,, and that the plaintiff, having become a party to the proceedings in the circuit court, cannot proceed against the marshal for the conversion of the assigned property while the attachment is undissolved. This contention overestimates the force and effect of the order refusing to dissolve an attachment. It was merely “the decision of a motion or summary application,” which “is not to be regarded in the light of res adjudicata, or as so far conclusive upon the parties as to prevent their drawing the same matter in question again in the more regular form of an action. ” Kanne v. Minn. & St.
Order affirmed.