Spooner v. Bay of St. Louis Syndicate

Vanderburgh, J. This is an action brought by a creditor after judgment against the defendant corporation, and execution returned unsatisfied, to have the effects of the corporation sequestered and distributed among creditors through the intervention of a receiver, in pursuance of 1878 G. S. ch. 76, §§ 9, 10. The order appointing a receiver was made on the 13th day of February, 1890. An appeal to the supreme court was taken and perfected by filing the proper stay bond, on March 1st. This appeal was determined, and the order affirmed, October 28, 1890. 44 Minn. 401 , ( 46 N. W. Rep. 848 .) The order appealed from involved the merits of the controversy, and stayed all proceedings in the district court pending the appeal. The action was tried in the district court in January, 1891, and an interloeutory judgment ordered, among other things, barring and precluding creditors who had not been made parties from sharing in the distribution. The defendant Charles Gibson, who was one of the creditors who had not been made a party, thereafter made application to have the judgment opened, and to be allowed to come in, exhibit his claim, and share in the assets. This application, after a full hearing, was granted by the court, May 11,1891. It is claimed that *317 this was an abuse of discretion on the part of the district court, and that its order should be reversed for that reason. It does not appear, however, that the situation had materially changed since the order made in January, or that the rights of any of the parties were prejudiced by the delay. There had been an order published limiting the time for creditors to appear, but this was published pending the appeal, and it is shown that neither the defendant Gibson nor his attorney had notice of it. If he had appeared and made his application at or before the hearing in January, it could not have been claimed that his delay was fatal; and the question of his subsequent laches was, we think, a fair question for the trial court upon the evidence before it, and the appellate court ought not to interfere with its decision. Order affirmed. (Opinion published 51 N. W. Rep. 377 .)