Fairbanks v. Whitney, 36 Minn. 305

Fairbanks v. Whitney

36 Minn. 305 | Minn. | 1886

Berry, J.1

The summons in this action was served on Goodwin, the principal defendant, on November 7th, and on the same day the garnishment summons was served on Whitney, the garnishee. On November 16th Goodwin executed an assignment for benefit of creditors to Whitney, which, however, was not filed with the clerk of the district court until November 24th.

The garnishment takes precedence of the assignment whether the latter is, as claimed by plaintiff, a common-law assignment under Gen. St. 1878, c. 41, or, as held by the trial, court, one under our insolvent act of 1881. Laws 1881, c. 148. If it is the former, then *306the garnishment takes precedence, because neither the common law nor chapter 41 gives an assignment any effect to supersede or dissolve a prior garnishment or other attachment. In such case the maxim, qui prior in tempore, etc., is decisive. If, however, the assignment is under the insolvent act, the garnishment is not superseded or dissolved, because not made within 10 days before the filing of the assignment in the clerk’s office, for it is only garnishments made within that period which an assignment under the insolvent act ipso facto dissolves. Laws 1881, c. 148, § 1. See Johnson v. Bray, 35 Minn. 248, (28 N. W. Rep. *504.)

The provision of section 23, chapter 41, supra, which makes assignments “void” “until” “filed” in the proper clerk’s office, (see Kingman v. Barton, 24 Minn. 295,) is made applicable to assignments under the insolvent act by section 1 of that act, which enacts that assignments under it “shall be made in accordance with, and be governed by, the laws of the state of Minnesota relating to assignments made by debtors, except as herein provided.” In re Mann, 32 Minn. 60, (19 N. W. Rep. 347;) Simon v. Mann, 33 Minn. 412, (23 N. W. Rep. 856.) As to how assignments shall be made and perfected there is no provision in the insolvent act except by this reference to Gen. St. 1878, c. 41.

Judgment affirmed.

Mitchell, X, was absent, and took no part in this case.