Legal Opinion

American Savings & Loan Ass'n v. Farmers & Merchants State Bank

Supreme Court of Minnesota

Decided June 16, 1896No. Nos. 10,084-(278)PublishedCited by 1 opinion

Appeal by defendant Williamson from an order of the district court for Hennepin county, Belden, J., overruling his demurrer to the amended complaint: The complaint is insufficient from failure to allege that plaintiff has recovered judgment against the bank, and that execution has issued and been returned unsatisfied.

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Appeal by defendant Williamson from an order of the district court for Hennepin county, Belden, J., overruling his demurrer to the amended complaint: The complaint is insufficient from failure to allege that plaintiff has recovered judgment against the bank, and that execution has issued and been returned unsatisfied. G. S. 1894, § 5897. The creditor must exhaust his legal remedy before he can maintain an action in equity. 1 Cook, Stock & Stockh. § 200, and cases cited; 5 Thompson, Corp. §§ 6561, 6563; Bank of U. S. v. Dallam, 4 Dana (Ky.) 574; 5 Thompson, Corp. § 6559; Jones v. Green, 1…

1Opinion of the CourtBuck, J.

There is but one material question raised by the demurrer in this case, viz.: Was it necessary to allege, in the complaint, that the plaintiff had recovered a judgment against the defendant bank, issued execution thereon, and had the same returned unsatisfied before commencing this action?

The facts alleged in the complaint are substantially as follows: The Farmers & Merchants State Bank, organized under G. S. 1878, c. 33, had for several years prior to June 20, 1893, carried on a general banking business. On June 19, having become utterly insolvent, it closed its doors, ceased to do business,…

2Cases cited2 opinions

  1. Cleveland v. Marine Bank of MilwaukeeWisconsin Supreme Court · 1863
  2. Klee v. E. H. Steele Co.Supreme Court of Minnesota · 1895

3Cited by1 opinion

  1. Minneapolis Paper Co. v. Swinburne Printing Co.Supreme Court of Minnesota · 1896

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