Scanlan v. Murphy

51 Minn. 536 | Minn. | 1892

Gilrillan, C. J.

Action to have a conveyance of real estate declared fraudulent and void as to plaintiff’s judgment, recovered against the grantor. On demurrer to the complaint the defendants claim that the action will not lie, because the plaintiff has, by proceedings supplementary to execution, an adequate remedy at law, and that those proceedings were intended to be substitute for such an action. In Banning v. Armstrong, 7 Minn. 40, (Gil. 24,) the nature of the action was fully considered, and it was held that, as it is not in the nature of a creditors’ bill to discover assets, but one to remove an obstruction in the way of the creditors’ legal remedy by execution, it is only necessary that the plaintiff shall have a lien by judgment on the real estate subsequent to the fraudulent conveyance; and this was followed in Rounds v. Green, 29 Minn. 139, (12 N. W. Rep. 454,) and Wadsworth v. Schisselbauer, 32 Minn. 84, (19 N. W. Rep. 390.) It is not necessary, therefore, for the creditor to follow his legal remedy further than to recover and docket his judgment.

The statement in the complaint of the debt upon which the judgment was recovered might not be sufficiently definite for a complaint in an action to recover the debt, but it is sufficient in the complaint in this action, the only purpose of the allegation being to show that the judgment was recovered on a debt accruing prior to the fraudulent conveyance.

In pleading a judgment, where the facts conferring jurisdiction are not pleaded, the exact form of words in 1878 G-. S. ch. 66, § 108, “such judgment or determination may be stated to have been duly given or made,” need not be used if equivalent words are used. The word “duly,” when used, does not refer to the regularity of the judgment, or its freedom from error, for that cannot be collaterally called in question, but it is equivalent to an allegation of facts showing jurisdiction. The allegation that the judgment was rendered in an action pending is to the same effect, and is sufficient.

Order affirmed.

(Opinion published 53 N. W. Rep. 799.)