Detroit Free Press Co. v. Drs. K. & K. U. S. Medical & Surgical Ass'n

| Mich. | Jan 27, 1887

Campbell, O. J

Tne plaintiff in certiorari having sued out and levied an attachment against the property of defendant, the latter procured a dissolution of the attachment by a circuit court commissioner, from which plaintiff appealed. The hearing of this appeal appears to have been delayed by a series of dilatory proceedings from December, 1884, until January, 1886, when the appeal came on for trial before a jury. Instead of proceeding with the trial, the circuit court undertook to decide that the plaintiff had waived and abandoned its attachment, and, without allowing any testimony to go to the jury, affirmed the dissolution, and ordered the property to be restored to defendant. The return to the certiorari recites a long series of transactions in the attachment suit and in other proceedings, which, if admissible at all, could only be properly introduced before the j ury on the trial of the appeal. The case comes in all respects within the •decision in Calvert Lithographing Co. v. Drs. K. & K. Medical Ass'n, 61 Mich. 336" court="Mich." date_filed="1886-05-06" href="https://app.midpage.ai/document/calvert-lithographing-engraving--map-publishing-co-v-drs-k--k-u-s-medical--surgical-assn-7932582?utm_source=webapp" opinion_id="7932582">61 Mich. 336.

We deem it proper to say, however, that, even if the circuit judge could have decided the questions before him on the facts which he certifies, we do not think they showed any •abandonment. The dissolution of the attachment rendered it impossible to deal effectually with the attached property, which appears to have been taken off by other parties, and,

■so long as these appeal proceedings were pending, plaintiff was helpless. Its resort to other means of collection, which proved ineffectual, could not be treated as an abandonment •or waiver of the appeal under such circumstances, and the •causes which it offered to show were sufficient to sustain its .attachment.

Without considering whether the sufficiency of the affidavit «itself could be looked into on this appellate proceeding, we have no doubt it was sufficient. It is quite possible for •several good reasons to co-exist for suing out an attachment,

•and we know of no reason why one should destroy the other when all are consistent.

The order dissolving the attachment, and affi ming the •commissioner’s order, must be quashed, with costs of both •courts.

The other Justices concurred.