104 Mich. 129 | Mich. | 1895
Judgment was rendered in the circuit court for the county of Kent against the relator for $991.53 and costs. Execution was issued, and returned nulla Iona. The plaintiffs in that suit thereupon presented an affidavit to one of the circuit court commissioners of Kent county for an examination of the relator under oath, and the discovery of his property, in accordance with the provisions of How. Stat. § 8107. The commissioner made an order for the relator to appear before him at a specified time for examination. The relator then applied to the circuit court of the county of Kent for the writ of mandamus to compel the vacation of this order by the commissioner. The circuit court denied the writ, and the case is now before us for review on a writ of certiorari.
The contention of the learned counsel for the relator is that the affidavit was not sufficient to authorize the issuance of the order, and to entitle the plaintiffs to an axamination of their judgment debtor, in that it showed no ground for the order other than the fact of the return of the sheriff to the writ of execution.
The validity of this statute was sustained in Lee v. Circuit Judge, 101 Mich. 406. The statute is silent as to the preliminary proceedings requisite to authorize the examination by the judge or commissioner. The only prerequisite provided in the statute is the return of an execution unsatisfied, whereupon—
“The judgment creditor may obtain an order from the judge of the court in which the judgment was obtained, or from -the judge of the circuit court for the county in which the defendant resides, or from the circuit court commissioner of any such county, * * * requiring the judgment debtor to appear and make discovery on oath,” etc.
The object of this statute is to provide a summary and inexpensive method by which judgment creditors, after
A different rule prevails in North Carolina. Hinsdale v. Sinclair, 83 N. C. 343. In that state the distinction between law and equity was abolished, and in construing this statute the court recognized and adopted the proceeding provided by the former system. At page 343 is this language:
“This construction of the statute on the subject of .supplemental proceedings is adopted by way of as near conformity as possible to the ca. sa. under our former system, of which it is in part a substitute, to have which*132 it was a prerequisite to exhaust all' liens by levy, and,, besides, show by affidavit the non-existence of property which could be reached by a fi. fa., and the existence of property which could not be reached by a fi. fa.”
The judgment of the court below is affirmed, with costs*