Friesenhahn v. Merrill ( 1892 )

Mitchell, J.

The condition of the bond in suit, which was for a stay upon an appeal to this court from an order denying a new trial, was in the statutory form, and the same as in Reitan v. Goebel, 35 Minn. 384, (29 N. W. Rep. 6.) Hence, as decided in the case cited, the payment of the judgment that maybe entered after the new trial is denied is not within the condition of the bond, unless the benefit of such judgment is lost in consequence of the appeal and stay. In other words, it was incumbent on the plaintiff to allege facts showing that he had sustained damage by reason of being prevented •during the stay from entering judgment, and proceeding to enforce its collection. The stay bond on the appeal was given in June, 1891, the order appealed from was affirmed in December, 1891, and judgment entered in favor of the plaintiff on the verdict on the 26th •of that month.

The only allegations of fact in the complaint that could by any possibility have the least tendency to show that plaintiff sustained •any damage by reason of the stay pending the appeal are (1) that •at the time of the execution of the bond, and thereafter, the Bushnells (the appellants in that action) had sufficient property out of which to pay said claim of plaintiff in full, and out of which, if judgment had been then entered, the same could have been fully made on execution; and (2) that oú and ever since October 28, 1891, said! Bushnells, and each of them, were and still are insolvent. The vice in these 'allegations is that there is nothing ft) show that the'Bush-nells' are not in aB good financial condition, and have not as much property in the state subject to execution, to-day, as in June, 1891, or that plaintiff’s judgment is not as collectible now as then. The Bushnells might have been insolvent in June, 1891, although they then had sufficient property out of which the judgment could have-been collected on execution, and, although insolvent, they may still have sufficient property for that purpose; for, except as used in insolvent or bankrupt acts, (in which it has a still broader meaning,) the term “insolvent” simply means one whose entire property is insufficient to pay all his debts. Neither is there any allegation that the insolvency of the Bushnells occurred since June, 1891, the date of the stay.

The allegation that they have since absconded from the state is-immaterial, at least in the absence of a further allegation that they took any of their property with them. The concluding allegation of the complaint, that the plaintiff has been damaged in the premises in the sum of, etc., goes merely to the amount of damages claimed as the result of the facts previously,pleaded.

The court below struck out the demurrer to the complaint as frivolous, but granted the defendant leave to answer within twenty days» As our conclusion is that the demurrer was good, it necessarily follows that it was not frivolous, and the order appealed from must be reversed. But to avoid misapprehension upon a point never before made in this court, and upon which' our decisions may be somewhat misleading, we wish to suggest that, had we concluded that the demurrer was bad, but not frivolous, we would not have reversed; for where, in such case, the party interposing the demurrer is not denied the privilege of pleading over, the action of the court in striking out the demurrer as frivolous would be error without prejudice. The-party is precisely in as good condition as if the demurrer had been-overruled as bad. The difference is only one of the form of the proceeding. To reverse and send the case back merely for the purpose of reaching the same result on a hearing of the issue of law raised by the demurrer would be worse than useless. It would involve additional costs, and do no one any good.

Order reversed.

(Opinion published 53 N. W. Rep. 1024.)