made to appear there, nor has it been shown here, that there was anything in it which affected or would preclude a recovery upon the bond by plaintiffs. It did not and does not now appear that either of the plaintiffs signed or verified any of the pleadings in the action referred to, or have ever had any knowledge of the allegations therein, or that, from any cause, they became so far bound by any of their pleadings as to raise the presumption that its allegations of fact were authorized by them. Under such circumstances, there was no error in the ruling which excluded the pleading offered, or the one intended to be offered, in evidence. Siebert v. Leonard, 21 Minn. 442; Vogel v. Osborne 32 Minn. 167, 20 N. W. Rep. 129. Order affirmed. (43 Minn. 160) SCHROEDER V. HARRIS et al. (Supreme Court of Minnesota. April 16, 1890.) APPEAL DISMISSAL-HARMLESS ERROR. From a careful examination of the record in this action, it is manifest that the proceedings in justice's court, which resulted in a judgment against this appellant, were regular and sufficient in every particular. Held that, even if the district court erred in dismissing an appeal upon questions of law alone, instead of affirming said judgment, (on which no opinion is expressed,) the error was without prejudice. (Syllabus by the Court.) Appeal from district court, Becker county: MILLS, Judge. W. W. Rossman and Jeff H. Irish, for appellants. C. M. Johnston and Walter J. Trask, for respondent. COLLINS, J. Appeal from an order of the district court dismissing an appeal, upon questions of law alone, from a judgment rendered in justice's court. We have carefully examined the very full and complete record of the proceedings in the trial court, and it is manifest that no error can be found therein. If, therefore, the district court committed a mistake in dismissing the appeal, as to which we express no opinion, it was without prejudice to the appellant. Instead of having the justice's Judgment affirmed, as it should have been on the record, there was simply a dismiss al of the appeal. Of this result the appellant ought not to complain. Order affirmed. (43 Minn. 137) LANE V. INNES et al. (Supreme Court of Minnesota. April 9, 1890.) Bankruptcy — Fraudulent Conveyances-SUMMONS-PUBLICATION-COMMON PLEAS 1. By the act creating the court of common pleas of Hennepin county, (Laws 1873, c. 177,) that Court was given equal and concurrent jurisdiction with the district court in that county, and the same statutory procedure was applicable alike to each. 2. An assignee in bankruptcy, under the general bankrupt act of 1867, was entitled to bring an action in the state courts to set aside fraudulent conveyances made by the bankrupt. Such an ao tion involves no federal question. It is an action in rem, and its object is to reach the property fraudulently disposed of, and apply it to the satis faction of the debts of the bankrupt, and properly belongs to that class of actions in which service by publication may be made upon non-resident defend 3. A finding by the trial court, in such an action, that a deed executed by an insolvent, when in failing circumstances, to a non-resident grantee, was not in fact delivered till more than a year after its execution, and a long time after its record, and after the assignment in bankruptcy, is sufficient, as against an attack in an independent proceeding, to support a judgment setting aside the deed as fraudulent and void. 4. A slight variance in the spelling and pronunciation of the name of the defendant in a pubfatal to the jurisdiction of the court. GILFILLAN, lished summons held not to be misleading, and not C. J., dissenting. 5. An affidavit of publication which states that the summons was published "seven" weeks, once a week, the date of the first and last publication being shown, from which it appears that six weeks was intended, is sufficient, under the statute. the requisites of process to bring the party into court, formal defects therein will not prevent jurisdiction attaching, any more than in cases of personal service, if publication thereof is shown by the record to have been authorized, and to have been made and completed in conformity with the statute. 6. Where the summons, as published, contains (Syllabus by the Court.) Appeal from district court, Hennepin county; SMITH, Judge. F. C. Stevens and Cobb & Wheelwright, (A. J. Shores, of counsel,) for appellant. Hawley & Hall, (Charles H. Woods, of counsel,) for respondents. VANDERBURGH, J. On the 13th day of February, 1874, one Joseph Hodges, an insolvent, filed his petition in bankruptcy and was duly adjudged a bankrupt by the district court of the United States for the district of Minnesota, and such proceedings were thereupon had in that court that one William E. Hale was duly appointed the assignee of the bankrupt, and the register in bankruptcy, on the 15th day of June, 1874, conveyed and transferred to him all the property, real and personal, that the bankrupt was owner of, or in any way entitled to, on the day his petition was filed; and the deed of assignment was duly recorded. On the 1st day of December, 1873, the bankrupt had filed with the register of deeds of Hennepin county a deed of the premises in controversy here, duly executed in form, by himself and wife, to the plaintiff herein, a relative of his wife, bearing date May 25, 1873, in which the consideration expressed was the sum of one dollar; and such deed was thereupon duly recorded. It is admitted that the title was in the grantor, Hodges, at and prior to the date of the deed. The. plaintiff herein, grantee in such deed, was then, and has since continued to be, a nonresident of the state of Minnesota. On the 15th day of August, 1874, Hale, the assignee, commenced an action in the court of common pleas in and for the county of Hennepin, against this plaintiff for the purpose of setting aside the deed we have referred to, and having it adjudged fraudulent and void as against the assignee claiming title to the property in question in trust for the creditors of the bankrupt, and, among other things, it was alleged and charged in the complaint that the deed was never delivered to the grantee, defendant, until long after it was recorded; that it was made by Hodges in contemplation of his bankruptcy, and manner, a plaintiff would be entitled to apply for judgment in the court of common pleas under section 210, and that court would have the same power to act as the district court, and under the same statutory procedure. 2. It is also claimed that the court had no jurisdiction of an action brought by an assignee in bankruptcy to set aside a fraudulent conveyance of his land by a bankrupt. The action is not in contravention, as we understand it, of any United States statute; and we are unable to discover any valid reason why the assignee claiming the property may not bring such action in the courts of the state within whose jurisdiction the property is situated. Such an action presents no federal question. Mann v. Flower, 25 Minn. 500; Kidder v. Horrobin, 72 N. Y. 159; McKenna v. Simpson, 129 U. S. 510, 9 Sup. Ct. Rep. 365. when he was insolvent, and was made and that chapter had been served either peraccepted with a view to prevent the prop-sonally or by publication. And, in like erty in question from coming to the assignee in bankruptcy, and to prevent the same from being distributed in accordance with the bankrupt act; and for the purpose, and with the intent, of hindering, delaying, and defrauding the creditors of the bankrupt of their lawful claims; and that he was at the date he was so adjudged bankrupt, and long prior thereto had been, the owner of the property, and that by virtue of the assignment it had passed to the assignee, the plaintiff in that action. Such proceedings were thereafter had in that action that on the 30th day of June, 1876, a judgment was duly rendered therein in favor of the plaintiff, as assignee, against the defendant, (plaintiff here,) wherein and whereby it was adjudged that the deed from Joseph Hodges to this plaintiff, before referred to, of the premises in question, "be, and the same is hereby, vacated and set aside, and declared to be null and void, and of no effect, and that the defendant in that action, and every person claiming under her subsequent to the recording of the notice of the pendency of the action, be and are forever barred from asserting any title to the premises as against the title of the plaintiff therein." A certified copy of the judgment and decree was recorded in the office of the register of deeds, on the 1st day of July, 1876. Upon the facts found by the trial court in this action the appellant raises several objections to the validity of the judgment above referred to, in favor of the assignee in bankruptcy, under whom the defendant, through several mesne conveyances, claims title. 1. The service of the summons was by publication, and the judgment was rendered upon proof thereof, and upon the plaintiff's application, in default of any appearance or answer of the defendant in that action. The plaintiff claims that the statutory procedure in the district court was not made applicable to the court of common pleas, and hence that the proceedings for the service of the summons, and the judgment in that court, were without authority of law. But we think otherwise. The requisite authority of the court is clearly implied from the language of the first and ninth sections of the act creating the court of common pleas of Hennepin county, by which it is given equal and concurrent jurisdiction with the district court in all cases arising or triable in Hennepin county; and the court, judge, and clerk are given like jurisdiction, power, and authority in all proceedings therein, and shall perform the same duties as the district court judge and clerk. These provisions are to be liberally construed so as to give them full effect in their practical operation, which could only be under the same statutory procedure provided for the district court in both civil and criminal cases; none being specially provided for in the common pleas. No other construction would be reasonable or tolerable. The common pleas as well as the district court would acquire jurisdiction of a defendant, under section 69, c. 66, Gen. St., when the summons provided for in 3. By section 5046, Rev. St. U. S., all property conveyed by the bankrupt in fraud of his creditors shall, by virtue of the adjudication of bankruptcy and the appointment of his assignee, be at once vested in such assignee. A judgment creditor claiming a lien upon the real property of his debtor may bring an action to remove the obstruction caused by a fraudulent conveyance before selling the property, or he may acquire title by execution sale, and then bring his action. Jackson v. Holbrook, 36 Minn. 499, 32 N. W. Rep. 852; Wadsworth v. Schisselbauer, 32 Minn. 87, 19 N. W. Rep. 390. The object is to remove the obstruction, or uncover the property, so that it may be disposed of at the best price, and the proceeds appropriated to the satisfaction of the demands of creditors. That is substantially the nature of the action brought by the assignee against this plaintiff. Heidritter v. OilCloth Co., 112 U. S. 300, 5 Sup. Ct. Rep. 135; In re Gurney, 7 Biss. 414; Rinchey v. Stryker, 28 N. Y. 45, 31 N. Y. 140. The action was not then an action in personam, but must be classed with actions in rem. judgment sought to be recovered therein affects the land only, and it was an action where service by publication upon the nonresident defendant was proper, and one which falls within the provisions of subdivision 5, § 64, c. 66, Gen. St. Pennoyer v. Neff, 95 U. S. 733. See Bennett v. Fenton, 41 Fed. Rep. 283. The 4. It is further insisted by counsel that the findings of the court of common pleas in that action do not support the judgment. In considering this and several other objections to the validity of the judgment, the distinction between errors and defects which go to the jurisdiction, and render the proceeding wholly void and of no effect, and such as must be remedied in the same proceeding by appeal or otherwise, must be carefully observed. Salter v. Hilgen, 40 Wis. 365, 366. It is not enough that there are irregularities in practice, or unsubstantial variances between the summons and complaint, or that the pleading is double, or improperly unites several causes of action, or contains more allegations or grounds for relief pear; but the error is clerical, and it appears sufficiently clear that it was published six full weeks, successively, "once a week." than is essential, or that the complaint is defective or incomplete, or that the findings of the court fail to cover all the issues tendered. If the matters determined are decisive of the case, and within the general 7. A further error or irregularity in rescope of the allegations made, and relief spect to the form of the summons as pubasked, the determination is not void, lished is also claimed to be fatal. The though the defendant has not appeared. summons and complaint appear to have Dillon v. Porter, 36 Minn. 341, 31 N. W. been issued together, and placed in the Rep. 56; Hersey v. Walsh, 38 Minn. 522, 38 hands of the sheriff of Hennepin county for N. W. Rep. 613; Peck v. Railroad Co., 85 N. service upon the defendant. On the 18th Y. 251; Gillitt v. Truax. 27 Minn. 529, 8 N. day August, 1874, he made his return that W. Rep. 767. Recurring to the allegations the defendant could not be found in that in the complaint in the former suit, which county; and the summons and complaint, we have referred to, and which are taken with the return thereon, were both duly from the findings of the trial court in this filed in the office of the clerk of the court case, it is clear that they are sufficient to of common pleas in the county of Hennepin uphold a judgment for the relief asked, viz., on the 20th day of August, 1874. The sumto set aside the deed as fraudulent and mons was in the following form: "State vold as against the assignee who represent of Minnesota, county of Hennepin. Court ed the creditors of the insolvent grantor. of Common Pleas. William E Hale, as AsThe findings of fact in that case were not signee of Joseph Hodges, a bankrupt, Piff., necessarily inconsistent with the com- vs. Berlah M. Plimpton, Dft. Summons. plaint, though imperfect, and made, per- The state of Minnesota to the above-named haps, upon a wrong theory. Among oth- defendant: You are hereby summoned er things, the deed, purporting to bear and required to answer the complaint of date more than a year before its delivery the plaintiff in the above-entitled action, to plaintiff, is found not to have been de- which is hereto attached and served on livered till after the insolvent had been de- you, and to serve a copy of your answer clared a bankrupt, and his property as to the said complaint on the subscriber at signed, though previously recorded; and his office in Minneapolis, in the county of he himself placed the same upon record Hennepin, in said state, within twenty long after he became in fact insolvent, and days after the service of this summons on when he was owing a large amount of in- you, exclusive of the day of such service; debtedness. This would justify the legal and if you fail to answer the said complaint conclusion that the deed was fraudulent within the time aforesaid the plaintiff in and void as to the plaintiff Hale, (In re this action will apply to the court for the Gurney, 7 Biss. 414; Robinson v. Elliott, relief demanded therein, together with 22 Wall. 514;) and it is not material that costs and disbursements of this action. the evidence and finding made a stronger W. E. HALE, Plaintiff's Attorney. Dated case in respect to the time of the delivery August 15, A. D. 1874." The affidavit for than is stated in the complaint. The effect the publication of the summons was in all of the judgment subsequently rendered respects in due form as required by the was to set aside the deed, and to declare statute, and all the conditions precedent the same null and vold; and this would to an authorized and lawful publication of enable the assignee to give a clear title. the summons were complied with. It will We do not see that the form of the judg- be observed that the provisions of the statment is prejudicial to the plaintiff. As re-ute for the publication of the summons spects her rights, it is not material that the deed should be declared void as to creditors, instead of being declared void generally. The error could only be corrected by proceedings in the same action. 5. In the published summons in that action there was a clerical mistake in the spelling of plaintiff's name, caused by the change of a single letter. Her name was then Beulah M. Plympton. As printed, it read "Berlah M. Plympton." In the judgment of the trial court, this was not deemed so material a change as to be misleading. And we think this will be sufficlently apparent when the two names are placed in juxtaposition. The plaintiff, or any one knowing her, could hardly mistake as to the person intended. Seaver v. Fitzgerald, 23 Cal. 92, 93; Stevens v. Stebbins, 3 Scam. 25; Belton v. Fisher, 44 11. 32: Stewart v. State, 4 Blackf. 171; Schooler v. Asherst, 13 Amer. Dec. 233, note; Mallory v. Riggs, 39 N. W. Rep. 886. 6. The proof of the publication of the summons is, we think, sufficient, though there is a clerical error here, also: the affidavit stating a publication of "seven "instead of "six" weeks between the dates of the first and last publications, which distinctly ap contain no direction as to the form or contents of the summons, or the notices to be inserted therein as published. In this respect, it differs from the statutes of New York and other states under which certain decisions cited by appellant were made. For instance, the New York Code provided that in cases of publication "the complaint must first be fled, and the summons as published inust state the time and place of such filing." The Wisconsin statute was substantially similar to that of New York. Rev. St. 1858, c. 124, § 10, subd. 5; 2 Tayl. St. c. 124, § 12. The California statutes in relation to the summons and service thereof are also essentially different from ours. After a careful consideration of the subject, we think the importance of the omission is exaggerated by the plaintiff, and that it does not go to the jurisdiction, but must be treated as an irregularity in practice. The essential requisites of a summons, as answering the purpose of process, are prescribed by Gen. St. c. 66, § 53, and these are all found in the summons in question, while sections 54 and 55 provide that the summons shall also contain certain notices and directions regulating the practice. See McCoun v. Railroad Co., 50 N. Y. 177, 178. Had this summons been personally served on the defendant, the court would unquestionably have acquired jurisdiction to proceed; and, if she would save her right to object on this ground, it would have been her duty to have appeared either generally or specially, and take such proceedings as she might be advised. Dunn v. Bloomingdale, 14 How. Pr. 475; McCoun v. Railroad Co., 50 N. Y. 178; Foster v. Wood, 30 How. Pr. 285; Dew v. Cunningham, 28 Ala. 466. The omission to notify the defendant that the complaint is filed will not be considered such an irregularity as would affect a substantial right, or subject a judgment rendered by default to attack in another proceeding. Foster v. Wood, supra. And so, if, under the section providing for service by publication, the residence of the defendant had been known, and a copy of the summons, which is all that the statute requires to be mailed, had been sent to her through the post-office, and had been received by her, as would be presumed until the contrary appeared, it would hardly be claimed that the service was a nullity. But the statutory requirements in respect to the publication of the summons are the same whether the residence is known or not. The statute fixes the time for answering the complaint, which is to be stated in the summons, but a variance in this respect is held to be an irregularity merely. Thus a summons requiring a defendant to answer in 20 days, where the law gave 90 days, was sustained, because the party was presumed to know his rights under the law, and the mistake did not affect the substantial rights or remedies of the defendant. Porter v. Vandercook, 11 Wis. 70; Morgan v. Woods, 33 Ind. 24; Gribbon v. Freel, 93 N. Y. 95; Gould v. Johnston, 24 Minn. 190. That matter, as well as the nature of the notice in the summons informing the defendant of the particular judgment or relief that will be taken or applied for, in default of an answer, is not modified or controlled by the section providing for publication, so that mistakes therein would not necessarily vitiate the published summons, though in some cases they might in practice be quite as misleading to the defendant as the error or omission complained of here. In Gribbon v. Freel, 93 N. Y. 95, the defect was in the published summons. It is true there was service outside the state, but the proceeding was regulated by the statute authorizing publication, in respect to the form of the published summons. Trust Co. v. Bulmer, 49 N. Y. 85. Here the summons clearly discloses the court in which the suit was brought, and in which the answer to the complaint therein must be served, and the names and residence of the plaintiff's attorneys. The defendant could hardly be misled in any particular. Formal defects in a summons served by publication upon a non-resident will not prevent jurisdiction attaching any more than in other cases, if such service is shown by the record to have been authorized, and to have been completed by the publication required by the statute. Armstrong v. Middlestadt, 36 N. W. Rep. 151; 1 Abb. New Pr. p. 386, § 24; Loring v. Binney, 38 Hun, 155, 156; Morgan v. Woods, 33 Ind. 24; McCully v. Heller, 66 How. Pr. 468; Waltz v. Borroway, 25 Ind. 380; Van Wyck v. Hardy, 4 Abb. Dec. 498; Gribbon v. Freel, supra. Order affirmed. GILFILLAN, C. J. I dissent. I think, in statutory proceedings to obtain substituted service, service by notice given through a newspaper, inserting the name "Berlah" instead of the true name, "Beulah," no matter how it occurred, by mistake or otherwise, would vitiate the service. One name is not idem sonans with the other. (43 Minn. 155) CITY OF DULUTH V. HENEY et al. (Supreme Court of Minnesota. April 16, 1890.) CONTRACTOR'S BOND-RELEASE OF SURETIES. Upon the completion of the work provided for in the contract mentioned in Bank v. Ĥeney, 40 Minn. 145, 41 N. W. Rep. 411, the city settled with the contractors, the principals in the bond which was construed in that case, and paid them in full. This action was brought by the city, for the use and benefit of the plaintiff in the former suit and another person, upon said bond. Held, that the sureties thereon were not released or discharged from the obligation of the bond by reason of payment in full to the contractors. (Syllabus by the Court.) Appeal from district court, St. Louis county; STEARNS, Judge. White & Reynolds, for appellant. William B. Phelps, for respondents. COLLINS, J. This is an action by the city, obligee, upon the bond considered in Bank v. Heney, 40 Minn. 145, 41 N. W. Rep. 411, and to recover for the use and benefit of the owner, said bank, upon the claims which it attempted to collect in the former, case; and also to recover for the use and benefit of Duncan, Gamble & Co., who furnished the same, the value of certain materials which were sold to the principals in said bond, and used by them in fulfilling the contract referred to in the opinion supra. At the conclusion of the trial a verdict was ordered and rendered in favor of two of the respondents, the sureties upon said bond. The appeal is from an order refusing a new trial. In the decision before mentioned the bond in question was construed as intended, among other things, to secure the payment of laborers who might be employed by the contractor, and the payment of those who might furnish materials to be used in the performance of the contract. It was further determined that the city, as the obligee named in the bond, could alone maintain an action upon it to enforce the collection of claims held by either laborers or material-men. But the respondents now contend that by reason of certain provisions to be found in the contract between the city and the principals in the bond, under which the work was performed, and because upon the completion of the work the city paid to the contractors the full amount due then upon the contract, the sureties upon the bond have been released and discharged, and, as against them, no recovery can be had. In other words, that under the contract it was the duty of the city to withhold payment to the contractors until satisfied in some manner that all claims for labor performed, or materials furnished, had been the answer contained no allegation under which testimony relative to such extension could properly be received. For that reason, if for no other, the appellants' objection to the testimony should have been sustained. A new trial must be had. Order reversed. (43 Minn. 18€) LIEBERMAN V. ISAACS et al. (Supreme Court of Minnesota. April 24, 1890.) SALE-TIME OF DELIVERY-SUFFICIENCY OF EVI DENCE. Findings held to be justified by the evidence. (Syllabus by the Court.) Appeal from municipal court of Minneapolis; MAHONEY, Judge. Frederick B. Lathrop, for appellants. Merrick & Merrick, for respondent. liquidated; and that, if the city has failed to perform such duty,—has improvidently paid the contractors,-the laborers and material-men have been deprived of a right to recover through the bond. The provisions of the contract, under which this somewhat singular position is taken, are those usually found in agreements of this nature; in brief, that no payments are to be made to the contractors until the work shall be completed in the manner agreed upon, and such completion certified to by the engineer and inspector in charge, nor until each and every of the stipulations previously mentioned in the contract has been complied with. Whereupon the city agrees to pay, on or before the 15th day of the month next succeeding that in which the work is done, 85 per cent. of the monthly estimate. The remaining 15 per cent. is to be retained until the contract is fully completed and the work accepted. There is also in the contract the customary agreement on the part of the contractors that all claims for labor and materials shall be promptly paid. The conditions of the bond are plain, and now beyond controversy; and conceding it to be within the power of the city to use any language In its contracts, or to perform any act, whereby the rights of those for whose beneft the bond is required and executed may be jeopardized or lost, we fail to discover any stipulation or condition in the contract from which even an inference can be drawn that the city assumed, or that there was cast upon it, the duty of seeking out the various laborers and material-men who contributed to the completion of the contract, and ascertaining the state of their accounts with these contractors, before making final and complete payment for the work. It is barely possible that the authorities would have been justified in refusing payment until it had been made to appear that there were no outstanding claims; but we are asked to go further than this, and to say that as to all contracts for street grading there has been imposed upon the city of Duluth an obligation to see to it that all laborers employed upon the work, and all material-men with whom the contractors have dealt, have been fully paid, before settling with the latter; and that during the progress of the improvement it must retain in its hands à suffielent amount of the money earned to meet and discharge demands of this character. There is nothing in the charter, nor in the contract itself, which suggests that such an extraordinary task has been assigned to or assumed by the municipality, and, should the views and construction demanded by the respondents be adopted, the utter impossibility of the carrying on of street improvements by a city of any size, with any degree of safety, under the contract system, seems obvious. The respond-ously disposed of most of the iron to other ents make the further point, as to a portion of the claims, that by accepting the so-called “time-checks" the laborers extended the day of payment for their work beyond that originally agreed on, without the knowledge of the sureties on the bond, and hence the latter are discharged from the liability theretofore existing. Upon this we shall only say at this time, that MITCHELL, J. Action to recover damages for the breach of a contract for the sale of a quantity of old iron by defendants to plaintiff, and the question is whether the decision of the trial court was justified by the evidence. It will be found, upon an examination of the evidence, that the whole case turned upon the question when, according to the agreement of the parties, the property was to be delivered and paid for. If is unnecessary to consider how far, if at all, oral testimony was admissible to explain or supplement the written memorandum of the bargain executed by the parties on July 26, 1889, as such evidence was introduced by both parties without objection. The original agreement, which was oral, was that the iron was to be delivered on the cars at Minneapolis on Saturday, July 27th, and the following Monday, and paid for on delivery. Subsequently the plaintiff's agent, with whom the business was transacted, was called by telegram to Chicago, and he informed the defendants that he could not attend to the shipment of the iron until his return, and, in view of this, the written memorandum referred to was executed. Both parties agree that the time for the delivery of, and payment for, the property was postponed until the return of plaintiff's agent from Chicago, but they flatly contradict each other as to when this was to be. Defendants swear positively that it was expressly understood that the agent was to return and receive and pay for the iron on the following Monday or Tuesday, (July 29th or 30th.) On the other hand, the agent swears in substance that he told defendants that he would not return for two or three weeks, and that it was in view of this delay that the written memorandum of the bargain was made. This was the pivotal question in the case, for the agent did not return until August 12th, when he found that defendants had previ parties. If the agreement was that the property was to be taken and paid for by plaintiff not later than July 29th or 30th, of course defendants were not bound to keep it for him until August 12th. On the other hand, if, as plaintiff claimed, it was the understanding that he was not to come for the property for two or three weeks from July 26th, then the trial court would |