Blanchard v. Brown

42 Mich. 46 | Mich. | 1879

Campbell, C. J.

Plaintiff sued defendant for damages claimed to have resulted from a wrongful suit in attachment under which plaintiff’s property was levied on by the under-sheriff of Kent county. The attachment was dissolved, and the action of the circuit court commissioner was affirmed by this court on certiorari in November, 1878. Some facts were relied on to show a wrongful detention which plaintiff claims to have been equivalent to a conversion, after the affirmance of the action of the commissioner.

The plaintiff on the trial proved a taking by the under-sheriff under claim of an attachment, and of Brown’s co-operation therein, and showed the value of the property. He introduced no other testimony.

The defendant then offered the affidavit and other attachment proceedings, which were admitted under objection. There is some difficulty in determining which party showed the subsequent proceedings, which included in addition to the certiorari and affirmance of the commissioner’s order, an -order by the circuit judge staying proceedings under the dissolving order pending the certiorari. There was also evidence of what occurred after the affirmance of that order, on which the claim of conversion is founded.

We cannot understand the reason for objecting to" proof of the attachment proceedings, when plaintiff expressly declared on them as the chief ground of action. They were clearly admissible.

There was no allegation in the declaration, of malice, and there was no proof whatever that Brown’ had not good reason to suppose Blanchard guilty of such conduct as justified him in suing out the writ. The record does not show on what allegations it was sued out. Under our statutes, if a party has good reason to believe a proper cause exists, his writ is good. It is, not denied this showing was made. Counsel for plaintiff seem to have supposed that a commissioner in acting on a petition to dissolve an attachment must necessarily pass upon the question whether plaintiff had good reason for his belief. This is a mistake. The commissioner inquires whether the defendant has actually done what plaintiff believes him to have done. His exoneration of the defendant is perfectly consistent with the existence of good reasons for the plaintiff’s belief in such guilt. The existence of reasons for plaintiff’s belief is not necessarily in issue at all. Folsom v. Teichner, 27 Mich., 107.

Assuming, therefore, what we are not prepared to hold without further consideration, that want of good reason to believe defendant’s misconduct, ‘ where there is no malice alleged, is a ground of action, there was in the present case no legal evidence of that fact; and in the absence of such testimony it must be assumed there was no wrong in suing out the' writ.

The property after levy was under control of the officer and not of the plaintiff in attachment, and the latter is not responsible for its further custody, If there was any necessity for urging the officer to diligence in restoring the property, it was the business of the defendant in attachment to see to the enforcement of the order of restoration which he had procured.

There was 'no evidence that Brown was responsible for anything but suing out the attachment, and no evidence that this was wrongful. We do not, therefore, deem it necessary to discuss the other law points, which in our .opinion are foreign to the record.

The judgment must be affirmed with costs.

The other Justices concurred.