183 Mich. 477 | Mich. | 1914
The relator commenced an attachment suit against Dale A. Smith and Clarence Smith, and caused
(1) That more than the statutory time had intervened between the making of the affidavit and the issuance of the writ; (2) that the description of the premises in the certificate of levy and inventory was too uncertain and indefinite.
Upon a hearing of this motion, the respondent quashed the attachment levy, giving as his reason for so doing:
“That the said attachment levy in said cause is invalid, and that said plaintiff has not a good and legal cause for suing out said writ.”
The order further provided that:
“It further appearing that said defendants have-appeared in said cause, and the court having jurisdiction of the parties by reason thereof, therefore it is ordered that said suit stand as if personal service had been had.”
It also appeared by the return of respondent that the attachment levy was quashed by reason of the defect in the affidavit pointed out by defendants in their motion. The relator asks this court for a writ of mandamus to compel the respondent to set aside the order and reinstate the attachment levy. Relator’s argument impliedly admits that the objection would have been well taken if it had been raised seasonably, but he insists that after the defendants appeared, filed their plea, and the case had been noticed for trial, the defect was thereby waived. The question, therefore, presented for our consideration is whether, under
It is proper practice in this State to bring to the attention of the trial court by a motion to quash such defects as are apparent upon the face of an affidavit for attachment. Roelofson v. Hatch, 3 Mich. 278.
But in order to make the motion effective it must be made before the defendant enters his general appearance and pleads to the merits; if delayed until after that time, the defect will be deemed to have been waived. 1 Green’s Michigan Practice, § 427; 1 Stevens’ Michigan Practice, § 17; Crane v. Hardy, 1 Mich. 56; Manhard v. Schott, 37 Mich. 234; Payment v. Church, 38 Mich. 776; Bryant v. Hendee, 40 Mich. 543; Dailey v. Kennedy, 64 Mich. 208 (31 N. W. 125); Gunn Hardware Co. v. Denison, 83 Mich. 40 (46 N. W. 940); Graham v. Cass Circuit Judge, 108 Mich. 425 (66 N. W. 348).
Counsel for respondent cites the case of Hyde v. Nelson, 11 Mich. 353, in support of his contention that there was no waiver. That case is not in point; it has reference to applications for a dissolution of attachment proceedings under the statute. 3 Comp. Laws, § 10595 (5 How. Stat. [2d Ed.] §13400). If it is desired to contest the truth of the grounds alleged in the affidavit for the issuance of the writ, resort must be had to this statute. Bower v. Town, 12 Mich. 230. And inasmuch as there are no restrictions in the foregoing statute as to when a petition for dissolution may be filed, it is held in Hyde v. Nelson, supra, that an application may be made and granted after the defendant has appeared and pleaded to the merits, and in a later case it is held that a petition to dissolve may be granted even after judgment.’ Gore v. Ray, 73 Mich. 385 (41 N. W. 329). But this rule does not apply where the defect in the affidavit is seasonably brought to the attention of the court by a motion
2. It is said the description of the premises in the inventory is too vague and uncertain to establish a lien upon the property. The inventory is in the following form: .
“State of Michigan,
“County of Ionia — ss.;
“By virtue of the annexed writ of attachment, wherein the John D. Gruber Company, a foreign corporation is plaintiff, and Dale A. Smith and Clarence R. Smith are defendants, I have this day seized certain lands, tenements, goods, chattels, moneys, and effects, of which the following is an inventory made by me, viz.:
“Inventory. All that certain piece and parcel of land known and described as follows: The south twenty-five (25) feet lot No. sixty (60) of the original plat of the village of Portland, same being the building now occupied by H. F. Caswell. Four thousand five hundred dollars ($4,500.00).
“Dated this 10th day of January, A. D. 1913.
“Glenn R. Van Geisen,
“Deputy Sheriff of Ionia County.”
The specific objection is that the county and State are omitted. If we look only to the description, there appears to be some force in the objection, but when it is read in connection with the officer’s certificate which accompanied the inventory, it becomes reasonably certain that “the village of Portland” referred to is located in Ionia county and State of Michigan. It appears from the certificate that the inventory was made by a deputy sheriff of Ionia county, and that such official action took place in Ionia county and State of Michigan. This sufficiently identifies the county and State. Russell v. Sweezey, 22 Mich. 235;
We are of the opinion that the order setting aside the attachment levy should be vacated, and the writ will issue as prayed.
