Central National Bank v. Graham

118 Mich. 488 | Mich. | 1898

Montgomery, J.

The complainant on the 23d of March, 1898, recovered a judgment of $12,000 and upwards against the defendant in the Wayne circuit court. On the 12th of May following, a creditor’s bill in the usual form was filed, and, on the 19th of May following, Henry G. Nicol was appointed receiver of the property of the defendant, by an order which also required the defendant to appear before a circuit court commissioner for examination. On the 16th of June a circuit court commissioner’s summons was issued, requiring him to attend a hearing on the 23d of June of the matters in said case in reference before said commissioner. He failed to appear on tbe 23d of June, and a petition for an order to show cause why he should not be adjudged guilty of contempt was filed; and, upon an order- to show cause being served, he-made answer that, upon receiving a copy of the receivership order, he caused a petition to be prepared, praying that said order, appointing the receiver be vacated or stayed until the issue made by his answer regarding the validity of the judgment upon which the proceedings were based be determined. The court on the 28th of June made two orders, — the one denying the application to stay the receivership proceedings, and the other adjudging the defendant guilty of contempt. The defendant appeals from both these orders.

It should be further stated that the defendant has filed an answer in the original suit, in which he sets up that the judgment obtained against him was obtained upon notes, in the giving of which he was “grossly swindled; ” that he was not aware of the trial of the case at law when it was tried; that “the trial was a conspiracy on the part of the complainant, its agents, attorneys, and others, to prevent this defendant from presenting any further application for a continuance.” It will not be necessary to determine whether the answer sets up any defense which can be recognized if the defendant should find himself able to establish the averments by proof. It is sufficient to say that the presumption of the validity of this judgment cannot be overcome by the averments of the answer, and it cannot be said that the circuit judge abused his discretion in refusing to vacate the order appointing a receiver. Williams v. Hubbard, 1 Mich. 446; Turnbull v. Lumber Co., 55 Mich. 387; Dutton v. Thomas, 97 Mich. 93.

It is urged against the order adjudging the defendant guilty of contempt that the commissioner had no authority to issue the summons in question, requiring the defendant to appear, until he had before him proof of service of the order appointing a receiver. The order appointing a receiver directs the commissioner to issue a summons upon request. A copy of this order was before the commissioner, and this was sufficient. Whipple v. Stewart, Walk. Ch. 357.

The only other claim which needs to be noticed is that the defendant could not be adjudged guilty of contempt pending the hearing of his petition to stay the receivership proceedings. The answer to this is that there was no temporary stay preventing the complainant from proceeding. The whole case indicates a purpose on the part of the defendant to delay proceedings.

The orders appealed from will be affirmed, and complainant allowed an additional solicitor’s fee of $25.

Grant, C. J., Moore and Long, JJ., concurred. Hooker, J., did not sit.