State ex rel. Spencer v. Severance

Yanderburgh, J.

Upon the return of the writ of certiorari, issued out of this court in this matter, the counsel for certain creditors, on whose application a receiver was appointed, move to dismiss the writ, upon the ground that the law afforded an adequate remedy by appeal. Prior to the appointment of the receiver, the execution creditors who have sired out this writ had brought'suit against the alleged insolvent, and caused his property to be attached therein. The receiver was appointed under and in pursuance of the provisions of Laws 1881, c. 148, § 2, and was ordered to take possession of all the property of the insolvent not exempt, including the property attached, and to distribute th¿ proceeds for the equal benefit of all creditors. Judgments having been entered in the attachment suits, and executions issued, pending the insolvency proceedings, the sheriff of Blue Barth county, in which all the proceedings were instituted, was ordered to turn over the property levied on to the receiver, and the proceedings of the latter officer were stayed until further order of the court in relation to the relative rights of the execution and general creditors. And thereafter the court, having heard the parties in interest, made a final order annulling the preferences and priority claimed by the execution creditors, and directing the receiver to proceed and apply and distribute the estate in his hands as provided by the statute.

This is a proceeding in insolvency, and is in the nature of a judicial investigation. Baldwin v. Hale, 1 Wall. 223. Though before the judge, (in term or vacation,) it is a proceeding in the district court, and the records thereof should properly be filed with the clerk. Clark v. Stanton, 24 Minn. 232. It may properly be denominated a “special proceeding.” Erie Ry. Co. v. Ramsey, 45 N. Y. 637; Smith v. Smith, 6 Lans. 313; Minnesota Valley R. Co. v. Doran, 15 Minn. 230; Warren v. First Div. St. Paul & Pac. R. Co., 18 Minn. 384; Andrews v. Town of Marion, 23 Minn. 372. Statutes conferring a right of appeal are remedial, and liberally construed in furtherance of justice. Potter’s Dwarris on Statutes, 231; Pearson v. Lovejoy, 53 Barb. 407.

We think that the’ order for the final distribution of the insolvent estate above described was a final order, affecting a substantial right, in a special proceeding, and appealable, under Gen. St. 1878, c. 86, § 8, subd. 6. The motion to dismiss the writ should therefore be granted. State v Milner, 16 Minn. 55.

Writ dismissed.