Minnesota Supreme Court, 1923

E. J. Beach & Sons v. Fitzgerald

Minnesota Supreme Court · Decided May 11, 1923 · Dlbell

155 Minn. 369; 193 N.W. 585 (Minnesota Reports)

Counsel

M. E. Gulhane and F. G. Austin, for appellant., Lewis E. J ones, for respondent.

Can I rely on this case?

Citation treatment has not been reviewed for this case. The notes below come from the citation graph and the Minnesota Revisor's amendment records, not from a review of how later courts treated this decision.

(as of 9/30/2026)

Last cited by a Minnesota appellate court in 1984, among the opinions in this site’s citation index.

Not a substitute for Shepard’s or KeyCite — verify before relying.

See our Terms of Use before relying on these notes. Report an error

Cases that cite this one

1 later published case cites this decision.

Boline v. Doty (Minn. Ct. App. 1984)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

DlBELL, J.

This is a summary proceeding under G. S. 1913, § 929, to compel James Fitzgerald, the sheriff of Wilkin county, to pay to the plaintiff money collected upon an execution. The court denied the plaintiff relief and it appeals.

On August 22, 1922, the sheriff collected $67.79 on an execution in favor of the plaintiff. On the same day he was garnished in an action against the plaintiff. He notified the plaintiff’s attorneys. The plaintiff did not appear in the garnishment proceedings. Later *370judgment was entered against the plaintiff in this action, and against the sheriff as garnishee for $24.03. No appeal was taken and on October 25, 1922, he paid the judgment and remitted the $67.79, less the judgment, to the plaintiff’s attorneys.

The rule is that if there is a fair doubt as to the liability of the sheriff the summary proceeding under the statute is not the proper one and the 'party aggrieved must seek relief in an ordinary civil action. Hull v. Chapel, 71 Minn. 408, 74 N. W. 156; Deering & Co. v. Burke, 74 Minn. 80, 76 N. W. 1020; J. H. Allen & Co. v. Christensen, 111 Minn. 414, 127 N. W. 185. The controversy is before us on affidavits. From them, and the papers referred to in them, the trial court was not required to find a breach of duty by the sheriff. When garnished he immediately notified the attorneys of the plaintiff, a nonresident. Judgment was entered, and after the time for appeal expired, and when he was subject to execution, he paid. We do not consider whether he was subject to garnishment. So far as appears the proceedings were regular. The plaintiff was free to make such defense as it had. The sheriff was not derelict in not doing more than he did or in not acting differently.

Order affirmed.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.