Dutcher v. Grand Rapids Fire-Insurance

131 Mich. 671 | Mich. | 1902

Grant, J.

(after stating the facts). Defendant introduced the entries upon the docket of the justice of the peace, and rested. Plaintiff then offered in evidence the files in the case, including the affidavit upon which the writ of attachment was based. Defendant objected, insisting that the docket entries were conclusive, and could not be impeached by the introduction of the files. The affidavit was admitted. Defendant introduced evidence tending to show that the affidavit found in the files of the case was not the affidavit upon which the writ was issued. The court found against this contention. The evidence was 'conflicting. We cannot, therefore, disturb the finding.

Statutory attachment proceedings are in derogation of the common law, and the proceedings thereunder must be strictly complied with. The affidavit was in the alternative, and is conceded to be void, under Kegel v. Schrenkheisen, 37 Mich. 174. The affidavit in these proceedings is jurisdictional, and, if the affidavit is void, the whole proceeding falls with it. Jurisdiction will not be presumed. Defendant was required to show a valid affidavit for the attachment and judgment under which it claimed protection. Goodrich v. Burdick, 26 Mich. 39. The affidavit was not offered to impeach the record. The entry did not assert its validity. Without a valid affidavit, the court does not obtain jurisdiction, unless the jurisdictional defect is waived by general appearance.

Judgment affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. ' .