230 N.W. 146 | Mich. | 1930
One of the plaintiffs in their behalf made an affidavit for writ of attachment in usual form reciting that defendants are justly indebted to plaintiffs in the sum of $250,000, etc., and that the *271 same is now due and payable on contract, also that the debt had been contracted fraudulently. The writ issued and was executed. 3 Comp. Laws 1915, § 13029. The declaration filed avers that plaintiffs in purchasing certain shares of stock from defendants had been defrauded by them in the amount named in the affidavit for attachment, and it is in assumpsit, upon waiver of tort, pursuant to 3 Comp. Laws 1915, § 12350.
On motion the attachment was dissolved. Plaintiffs bring certiorari.
The question is on the holding of the trial court that plaintiffs' failure to comply with 3 Comp. Laws 1915, § 13049 (added by the judicature act of 1915), is here fatal. We quote:
"In all actions based upon tort, if in addition to the affidavit hereinbefore required, the plaintiff shall also in such affidavit set forth in detail his cause of action, the circuit judge of the circuit in which such action is commenced, may make an order authorizing the issuance of an attachment in said cause, specifying in such order the amount or value of the property which may be attached by virtue thereof; and it shall be required in such order that the plaintiff file a sufficient bond, with a penalty fixed in said order, and with sureties to be approved by the clerk of the court, conditioned that said plaintiff prosecute said suit with diligence, and will pay any damages and costs that may be awarded to the defendant in said attachment, either in said suit, or in any action brought by said defendant for damages accruing by reason of such attachment. Except as herein otherwise provided, the proceedings under such attachment shall be the same as in other attachment cases."
The demand here, the tort having been waived, is in assumpsit, as upon promise and on contract. *272 Chandler Motor Sales Co. v. Dertien,
There is force in the holding of the trial court that section 13049 relates to those actions arising out of tort in which recovery in assumpsit upon waiver of the tort is permitted, for the section requires that a plaintiff seeking attachment in an action based upon tort shall make an affidavit setting forth in detail his cause of action and this in addition to "the affidavit hereinbefore required" which latter affidavit is that required by said section 13029, in which it must be stated that the indebtedness "is due upon contract," etc. But this holding leads to difficulty. Recovery in assumpsit is permitted on waiver of tort in certain cases by statute, 3 Comp. Laws 1915, § 12350, and at common law one might waive the tort and sue in assumpsit in certain cases, as where the tort arose out of contract relations or consisted of a conversion of plaintiff's property into money. Plefka v. Railway Co.,
Regardless of the fact that it may be difficult if not impossible to make an affidavit in a tort action to comply with the requirements of section 13049, we think the legislature intended the section to apply only to tort cases, and that an affidavit for attachment in an action in assumpsit or in contract was to be made under section 13029. SeeShowen v. J. L. Owens Co.,
The affidavit for attachment in this action in assumpsit or contract, having been made in compliance with section 13029, is sufficient.
Reversed and remanded. Costs to plaintiffs.
WIEST, C.J., and BUTZEL, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ., concurred.
