American Savings & Loan Ass'n v. Farmers & Merchants State Bank
Supreme Court of Minnesota
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
- Cleveland v. Marine Bank of MilwaukeeWisconsin Supreme Court · 1863
- Klee v. E. H. Steele Co.Supreme Court of Minnesota · 1895
3Cited by1 opinion
- Minneapolis Paper Co. v. Swinburne Printing Co.Supreme Court of Minnesota · 1896