71 Minn. 390 | Minn. | 1898
This appeal is closely connected with that in Elwell v. Goodnow, supra, page 383, and begins where that ends. Reference to the opinion in that case is made for a statement of most of the facts in this case.
Upon the trial of the relator for contempt of court in the appeal referred to, it was disclosed that the warrants in question had been taken from the possession of the comptroller by the appellant herein by virtue of process in a replevin action of the Minneapolis Western Railway Company against the City of Minneapolis and Wallace G. Nye as its comptroller. Thereupon the trial court made its order requiring the appellant to show cause why he should not deliver the warrants to William P. Roberts, the receiver. None of the parties to the replevin action were parties to such order to show cause, except the appellant. The appellant appeared in response to the order, and objected to the jurisdiction of the court in the premises, and to the sufficiency of the moving papers and order. His objections were overruled, and he then made his verified return and answer to the order to show cause to the effect that the warrants were taken and detained by him as sheriff in obedience to process in the replevin action; that, as yet, there had been no exception to the sureties on the replevin bond or rebonding of the warrants.
There was no reply made to this answer, and the facts therein stated stood admitted. There is no suggestion in the record that the sheriff had any notice of any of the previous orders made in the original action when he replevied the warrants. It is, however,
1. The respondent, the receiver, urges that the order is not appealable. The sheriff was not a party to the original action in which the receiver was appointed, and the trial court had no more power to proceed against him summarily than it had against any ■other person not a party to the original action. The fact that he was the executive officer of the law, and held the warrants as such, in no way affected the question of the jurisdiction of the court over him.
Hence the order to show cause as to him was a new and special proceeding, and the. absolute order made therein, depriving him of the possession of the warrants, was a final order, affecting a substantial right, for he was legally bound to hold the warrants for the length of time required by the statute, and then, if the sureties on the replevin bond were not excepted to, and the defendants did not rebond, to deliver them to the plaintiff. He was responsible to the plaintiff for the safekeeping and delivery of the warrants as required by law. But the plaintiff was not bound by the order made in the special proceedings on the sheriff, and the latter could not plead it in justification when called upon by the former for the property. The order in question, being a final order, affecting a substantial right, made in a special proceeding, is appealable. G. S. 1894, § 6140, subd. 6.
2. Upon the merits it is clear that in no event can the order be sustained unless the warrants were in the possession of the court at the time the sheriff replevied them. This proposition was conceded by counsel for the respondent on the argument, but his claim was that, by virtue of the several orders made in the original action in which the receiver was appointed, the warrants were, in legal effect, so in the possession of the court. We hold, irrespective of G. S. 1894, § 5174, permitting actions to be brought against receivers without leave of court, that the warrants were not in the actual or constructive possession of the court, and that it was the right and duty of the sheriff to replevy them in obedience to the process
Order reversed.