84 Mich. 554 | Mich. | 1891
This suit was commenced by attachment before a justice of the peace for the county of Wayne, and resulted in a judgment for the plaintiff. Defendant St. Louis appealed to the circuit court. The bond on appeal recited that “we, Demas St. Louis, as principal, and John H. Ley and Fred Holcomb, as sureties, * * * are held,” etc., and was in the' ordinary form, containing the condition required by statute, and was signed by Demas St. Louis and John H. Ley, but not by Fred Holcomb. John H. Ley appeared before the justice, and justified as to his responsibility under oath by affidavit subscribed by him and sworn to before the justice, and the justice certified as follows: “I hereby certify that the sureties in the foregoing bond justified their pecuniary responsibility as such on oath,” — which certificate was dated, and signed by the justice. The date of the certificate is the same as that of the bond and of the justification of Ley.
In the circuit court the plaintiff again had judgment, which under the, statute was rendered against the defend
The only errors which' can be considered upon the
It is claimed by plaintiffs in error that the justice's court did not acquire jurisdiction over the person of Louis DeLemos on account of insufficient service of the attachment. The record shows that personal service was made upon Demas St. Louis, and that the officer attached the goods of Demás St. Louis, and that after diligent attempts to find the defendant Louis DeLemos he could not find him in Wayne county, and left a copy of the attachment and inventory, duly certified by him, with Demas St. Louis, in whose possession he found the goods attached, the said Louis DeLemos having no last place of residence within the county. The return of service appears to have been in accordance with How. Stat. § 6841, and the court, in case of two, joint debtors, is authorized to proceed, if personal service is had upon one, by section 6845.
The further objection, that the affidavit was void in stating that there was a debt justly due the plaintiff from Louis DeLemos and Demas St. Louis upon express and implied contract, is not good. If it were in the disjunctive it would be bad; but it is equivalent to saying that the debt is due upon express contract and upon implied contract, which would be the sense if a comma were inserted after the word “ express;” and if it would be good with a comma inserted, it is good without.
We thinlc the judgment of the circuit court ^should be affirmed, without prejudice to any remedy the surety may have for relief in a proceeding, where his claim for relief may be. brought before • a proper forum. Judgment affirmed.
The record consisted of the proceedings had in justice’s court and in the circuit court, including the petition to vacate the judgment in the latter court as to the surety, and the affidavits in its support, and the order of denial, there being no bill of exceptions in the case. The errors assigned, aside from those specifically referred to in the opinion, were, in substance, that the court erred in rendering judgment; against the surety, because—
a — He never became liable on the appeal-bond, having signed it on the express condition and understanding that the co-surety therein named should also sign the bond, which was only to become operative when such signature was affixed.
b — The bcind shows that it was never perfected “by such signature, and withal was a bond referring to a judgment in favor of the plaintiff, and against Demás St. Louis alone, and did not refer to a judgment against both of the defendants.