Hibbs v. Marpe

84 Minn. 178 | Minn. | 1901

START, c. J.²

Tbe plaintiff is trustee in bankruptcy of tbe firm of Brundin Bros., .and of each of the co-partners, be having been appointed as such March 1, 1900. This action was commenced April 6, 1900, to set aside, as fraudulent as to creditors and as to tbe plaintiff, as such trustee, a deed of certain land made by Charles B. Brundin, one of tbe bankrupts, to tbe defendant on January 3, 1899. .The cause was. tried by tbe court, and findings of fact and conclusions of law made to tbe effect that tbe deed was fraudulent, as alleged; that tbe defendant took possession of tbe land in controversy in March, 1899, and thereafter, and before tbe commencement of this action, received as rents therefor tbe sum of $154, which sum, with interest thereon, tbe plaintiff was entitled to recover; and that judgment be entered accordingly. Thereupon tbe defendant moved for a new trial, and appealed to this court from an order denying bis motion. Tbe order was affirmed by this court (Hibbs v. Marpe, supra, page 10), and tbe case remanded. Thereupon judgment was entered upon tbe findings of fact and conclusions of law in tbe district court, from which tbe defendant appeals.

The defendant, on this last appeal, assigns only one error, which is to the effect that the trial court erred in .entering judgment for the amount received by the defendant as rents for the land prior to April 6, 1900; or, in other words, that the conclusion of law of the trial court that the plaintiff was entitled to recover the amount of such rents was not justified by the facts found, for the reason that, as a matter of law, the trustee was not entitled to recover for any rents so received prior to his appointment. This precise question was involved in the former appeal, and might have been raised and determined on the hearing thereof, for the objection that the trial court’s conclusions of law and direction for judgment are not justified by its findings of fact may be raised and determined on an appeal from an order denying a motion for a new trial. Tilleny v. Wolverton, 54 Minn. 75, 55 N. W. 822. Therefore, the question cannot be considered on this appeal, for all questions which were or might have been raised on a former appeal in the same action are res adjudicata. Schleuder v. Corey, 30 Minn. 501, 16 N. W. 401; Adamson v. Sundby, 51 Minn. 460, 464, 53 N. W. 761; Tilleny v. Wolverton, supra.

Judgment affirmed.

2 LOVELY, .1,. took no part.