56 Minn. 202 | Minn. | 1894
The plaintiffs brought this action upon a policy issued by the defendant, a loss by fire having occurred. The cause of action is admitted by the defendant, but it pleads, as a bar to the action, that prior to the commencement of the action the defendant had made an assignment, under the insolvent law of this state, to one Franzen, who duly qualified and entered upon the discharge of his duties as assignee, and that about the 18th day of July, 1892, the plaintiffs herein duly made out their claim for the identical loss and policy described in the complaint in this action, which was verified as required by statute, and filed said claim with said assignee as and for a claim against the estate of defendant, the said insolvent, which claim was duly received ami allowed by said assignee, and is now pending before said assignee.
The facts set up in the answer are substantially conceded, and the cause was submitted to the court, and tried without a jury, and judgment ordered by the court in favor of defendant upon the pleadings; and thereafter judgment was rendered accordingly in favor of defendant, from which judgment the plaintiffs appeal to this court.
'• The only question presented is whether a creditor who has filed his claim with .an assignee in insolvency proceedings is precluded
Is there anything to be found in the insolvency act which forbids a creditor from enforcing his common-law remedy? The act provides that, upon the making of an assignment, all attachments, levies, or garnishments shall be dissolved upon the appointment of an assignee or receiver, and thereupon the officers shall deliver the property attached or levied upon to such assignee or receiver, unless the assignee shall, within five days after such assignment, file, in the office of the clerk of court where such attachment was issued or judgment rendered, a notice of his intention to retain such attachment, levy, or garnishment, in which case such attachment, levy, or garnishment shall inure to the benefit of all the creditors, and the assignee in such case may be substituted in the place of the plaintiff for the enforcement of such proceedings, except in cases where a complaint has been filed in the office of the clerk of the court twenty days prior to the entry of a judgment. These proceedings are all
In the case of Parsons v. Clark, 59 Mich. 419, (26 N. W. 656,) the court states the law to be that “the right of action by the creditor against the debtor is not barred by the assignment. He may bring his action, notwithstanding the assignment, as soon as it is made.” This case was cited with approval by the same court in Detroit Stove Works v. Osmun, 74 Mich. 7, (41 N. W. 845,) where the action was commenced the day before the assignment was made; and in the latter case the court say “that the assignment proceedings can in no way affect the right of the plaintiff to proceed to judgment, whether the suit is commenced before or after the assignment is made; neither are its rights to be affected in proceedings to judgment by reason of it having filed its claim against the defendant with the court’s clerk in the assignment proceedings.” This last case is directly in point. See, also, Thomas v. Carter, 63 Vt. 609, (22 Atl. 720.) There would be more plausibility in the contention of the defendant if the filing of the claim with the assignee by the plaintiff afforded him adequate and complete relief, or the means to pursue his claim to judgment; but no such relief can be granted him in the insolvency proceedings. There the relief is usually only partial, and therefore inadequate. There can be no judgment in personam, and the relief is only for the creditor to take such share-of the proceeds as may be found by the assignee for distribution. To deny or restrain the remedy of a common-law action in such case would be unjust. Until the debt is in some way satisfied, the rem
The judgment appealed from is reversed.
(Opinion published 57 N. W. Rep. 475.)