11 Mich. 353 | Mich. | 1863
Lead Opinion
A motion was made before 'a Circuit Court Commissioner to dissolve an attachment, which upon hearing of proof was granted. It is now alleged on certiorari that the order dissolving the attachment was erroneous.
The suit was at issue in the Circuit Court; and it is claimed that no application can be made to dissolve an attachment after appearance.
The statute authorizing these applications does not limit the time when they may be made. It declares that in all cases where the writ has been issued and served, it shall be lawful for any defendant, whose property may be attached, to apply for a dissolution of the attachment. When the writ issues the object of making the attachment is not merely to bring the defendant into court, but also to retain the property that it may be ready to be applied on any judgment which may be obtained. The defendant can only be held liable to a personal judgment, binding in all respects, when he has been personally served or shall appear. And in such case the suit proceeds as if he had been summoned: — Comp. JL. §4763.
A creditor has no right to pursue a resident debtor found within the State by anything except a personal service of process or declaration, unless the debtor has been guilty of some one of the wrongful and fraudulent acts set forth in the statute. If he has not committed any of these the creditor ought not justly to obtain any specific lien in advance of his judgment. The writ of attachment issues on mere information and belief of these charges, and if at any time before judgment the defendant upon a hearing on that subject is not found to have been guilty of them, the plaintiff, if the writ has been served, or if there has been an appearance, can still recover such judgment as. he would have done had he commenced his action in the usual way. - It was ] held in Paddock v.
We are of opinion the application was not made too late.
The defendant was allowed to show ■ by his own testimony, that when the attachment was served he did not know he was owing any one. It is claimed that this testimony was improper as going to disprove 'the plaintiff’s case on the merits, and not merely on the collateral issue.
We are not at liberty upon certiorari to inquire into the facts of the case as presented by the proofs. There was testimony on both sides bearing upon the issue made on the petition. We can not therefore review the Commissioner’s finding on mere questions of fact. It is only when there is an entire absence of proof upon some material fact found, that such finding becomes erroneous as a matter of law: — Cicotte v. Morse, 8 Mich. 424; Jackson v. The People, 9 Mich. 111; Berry v. Lowe, 10 Mich. 9.
The order must be affirmed.
Concurrence Opinion
I do not concur with my brethren, as I think that after a general appearance and plea, the Circuit Court Commissioner can have no jurisdiction over the person or property of the defendant.
Order affirmed.