59 Mich. 272 | Mich. | 1886
Lead Opinion
This is an application for a writ of mandamus to compel the respondent, one of the circuit judges of the Wayne circuit court, to vacate and set aside an order entered by him on the twelfth day of November, 1885. On the twenty-eighth day of July, 1884, Henry M. Du field commenced a suit, by attachment, in the Superior Court of Detroit, against the E. T. Barnutn Wire & Iron Works, a corporation organized and existing under the laws of this State, and under said proceedings in attachment secured a levy upon all or nearly all the lands, goods and chattels belonging to said corporation. On or about the twenty-first day of August, 1884, said Duffield filed his declaration in said attachment suit. On the thirteenth day of October, same year, the defendant (the relator) filed a plea of general issue in said cause. The suit was noticed for trial, October 18, 1884, by plaintiff. The said cause has been upon the docket for trial at nearly every term since it was at issue and it was noticed and placed upon the docket for the September term, 1885, of said Superior Oourt by the plaintiff. It was also legally noticed and placed upon the docket for trial at the November term, 1885, of said Superior Oourt by the defendant. That on the seventh day of November, 1885, the said plaintiff moved for a continuance of said cause, which motion, on the same day, was argued by the counsel for the respective parties, and has not as yet been decided by said Superior Court.
After the attachment suit had been commenced, the corporation became insolvent, and made an assignment for the benefit of creditors. The First National Bank of Detroit and the Merchants and Manufacturers’ Bank of Detroit filed a bill of complaint in the circuit court for the county .of Wayne, in chancery, against said insolvent corporation, also making the assignee, Abram L. Stebbins, Henry M. Duffield, and other parties who also held attachment liens prior to Duffield’s, parties defendant to said bill. In this chancery proceeding, by consent of all the parties, an order was entered
“In the Circuit Court for the County of Wayne — In Chancery.
“The First National Bank of Detroit et al. v. The E. T. Barnum Wire & Iron Works et al.
“ At a session of said court held at the court-room, in the*276 city of Detroit, on the twelfth day of November, 1885, present, J. J. Speed, circuit judge, on reading and filing the petition of Henry M. Duffield, praying, among other things, that the defendant the E. T. Barnum Wire & Iron Works be ordered to desist and refrain from trying, or forcing to trial, the attacbmen fc suit of the petitioner against said E. T. Barnum Wire & Iron Works, pending in the Superior Court of Detroit, and on hearing Henry M. Duffield, in propria persona, in behalf of said petition, and Erank H. Canfield, solicitor for the corporation, in opposition thereto, and the court having duly considered the same, it is hereby ordered that the said E. T. Barnum Wire & Iron Works, and the said petitioner be, and they are hereby, ordered to desist and refrain, until the further order of this Court, from trying or forcing to trial the attachment suit of said petitioner against said defendant the E. T. Barnum Wire & Iron Works, under writ of attachment, in which suit the sheriff was in possession of certain property of the E. T. Barnum Wire & Iron Works at the time of the appointment of the receiver in this cause.
[Signed] “John J. Speed, Circuit Judge.”
The main reason assigned to sustain the validity of this order by the respondent in his answer is this: That, when the judgments taken by consent in the Superior Court and the Wayne circuit were brought into the chancery cause to prove the claims of the respective parties holding the same, the respondent, as circuit judge, decided that such judgments could not be used for such purpose, but such claims must be proved anew, and might be there contested by the receiver or the creditors; and that, therefore, the trial of, or judgment in the Superior Court, in the suit between Duffield and the corporation would be of no benefit to either party, as a judgment would not be final or conclusive, and the whole matter would, notwithstanding such judgment, be open to litigation dc novo in the Wayne circuit in chancery under the claim filed therein. The same line of argument is followed in this Court by the counsel for respondent. It is insisted that, if Duffield obtained a judgment in the Superior Court, still, in the chancery cause, the whole controversy would be open, and would have to be gone over again; and, contra, if Duffield was defeated in the Superior Court, he
The statute regarding voluntary assignments for the benefit of creditors (2 How. Stat. §§ 2137 to 2110), does not, by its terms, prevent; the further continuance of any proceedings at law, by a competent court, pending at the time of such assignment. Neither by the letter or spirit of that statute was the jurisdiction of the Superior Court ousted or impaired in this attachment suit. That court has a perfect right to proceed to trial and judgment, the same as if no assignment had been made. The danger of fraud and collusion between the corporation, the assignor, and any creditor, in case judgment was entered in favor of the creditor, is not without remedy, in our opinion ; but it is not necessary to enter into a discussion of that question here, as we are only concerned, for the purposes of this application, with the suit of Duifield. Surely he cannot be heard to complain that there is danger of his obtaining a fraudulent judgment by collusion with the cor
The Wayne circuit court, in chancery, had no power or authority to enter the order, and there is no element of justice in it. The writ must issue as prayed, with costs to the relator against Henry M. Duffield.
Rehearing
On a motion for a rehearing of this application the following opinion was filed, February 10, 1886 :
An application is made to rehear this motion, on the ground that some doubt exists in the mind of respondent, concerning the proof of claims and their effect. As, under the assignment law, the assignee when applied to by creditors interested, represents all interests for purposes-of contest, and is.the proper person to contest claims, we