Carlson v. Smith , 127 Minn. 203 ( 1914 )

Hallam, J.

Plaintiff Carlson and J. P. Schmidt were co-sureties on a bond to one Mackey. On August 5, 1911, Mackey procured a joint judgment against them for $1,184.17, and procured an execution and caused levy to be made upon the property of Schmidt. After some negotiations, Mackey agreed to accept $1,000 in settlement of his judgment. On February 29, 1912, J. P. Schmidt procured this amount and paid it over, and an assignment of the judgment was taken in the name of his son, the defendant Peter Smith, Jr. There is evidence that J. P. Schmidt directed that this assignment be made to defendant in payment for services rendered since defendant became of age. On March 1, 1912, the first execution was returned by the sheriff half satisfied, and on the same day a new execution was issued and land of this plaintiff was sold thereunder to satisfy the remaining half of the judgment. Plaintiff brings this action to quiet title to the land sold, on the ground that the sale was void. The exe--cution was in due form, due notice of sale was given, the sale was regularly conducted, and it is not questioned that as between himself .and his co-surety plaintiff Carlson ought in justice to pay his share of this judgment, but some objections are raised to the procedure followed which, it is claimed, invalidate the sale. We consider these objections without merit.

1. It is contended that the answer did not allege facts sufficient to show that defendant had a valid lien upon this land. The point of the contention is, that the answer simply alleged that the assignment of the judgment was “filed in said proceeding,” whereas, it is contended, it should be filed with the clerk and an entry thereof made in the docket. The statute provides that no assignment of a judgment shall be valid “as against a subsequent purchaser * * * in good faith for value, or against a creditor levying upon or attaching the same, unless it is filed with the clerk and an entry thereof made in the docket.” G. S. 1913, § 7909. This statute in clear terms affects the validity of the assignment only as to such parties as are therein designated, that is, subsequent purchasers and attaching creditors. As between the parties to the judgment, an assignment is valid though not so filed and entered. Swanson v. Realization & Deb. Corp. 70 Minn. 380, 73 N. W. 165.

2. It is contended the facts show a payment of the judgment by J. P. Schmidt, and that it follows that the assignment of it to defendant was void. The court found that the judgment was “sold, assigned and transferred” to defendant. This signifies a purchase of the judgment for a consideration, and the evidence is sufficient to sustain this finding. We do not wish to be understood as inferring that the assignment would have been invalid if J. P. Schmidt had in fact paid the judgment against himself and his co-surety. Felton v. Bissel, 25 Minn. 15; Ankeny v. Moffett, 37 Minn. 109, 33 N. W. 320.

3. The next contention is that the alias writ was prematurely issued. The original writ was returned March first and the alias writ issued the same day. Doubtless the original writ must be returned before the alias' writ can issue, and. the contention is that the law will not consider fractions of a day, that upon the facts stated the first writ is conclusively presumed to be an outstanding writ during the whole of the day of its return unless there is affirmative evidence to the contrary. We do not so understand the law. Acts required to be done in sequence may usually be done on the same day, and where they are so done it will be presumed, in the absence of evidence to the contrary, that they were done in such order as to render them both valid. Haven v. Foster, 14 Pick. (Mass.) 534, 548; Ivy v. Yancey, 129 Mo. 501, 509, 31 S. W. 937. The evidence in this case simply showing that the original writ was returned and the alias writ issued the same day, it will be presumed that these acts were done in the proper order, that is, that the original writ was first returned.

4. It is contended that proper formalities were not observed in the procurement of this alias writ. No particular formalities were required. No order of court was necessary. Johnson v. Huntington, 13 Conn. 47; Ex parte McManaman, 16 R. I. 358, 16 Atl. 148, 1 L.R.A. 561. The alias writ was under the seal of the court and subscribed by the clerk, as required by statute. G. S. 1913, § 7924. The copy served on the judgment debtor was not signed or sealed. This court has held that this omission does not invalidate the sale, and we are not disposed to depart from this rule. Duford v. Lewis, 43 Minn. 26, 44 N. W. 522.

5. It is urged that “no return of any levy was signed by said sheriff.” No formal levy is necessary to be made on real estate. Hutchins v. Co. Commrs. of Carver County, 16 Minn. 1 (13); Duford v. Lewis, 43 Minn. 26, 44 N. W. 522. The sheriff must of course make a return after sale. G. S. 1913, § 7925. The record before us is not altogether clear, but it would appear that such a return was made in proper form and signed. However, we do not regard this as material in this case. Omission of an act of this sort required to be done by the sheriff after sale cannot reach back and avoid the sale. Millis v. Lombard, 32 Minn. 259, 20 N. W. 187.

Judgment affirmed.