35 Mich. 436 | Mich. | 1877
This is a certiorari by Johnston to reverse a judgment given against him as garnishee in the circuit court for the county of Manistee.
Delbridge and Hubbell sued one Leitch in the circuit court, and while that suit was pending, Delbridge made affidavit, June 22, 1875, that he had good reason to believe, and.did believe, that Johnson had money in his hands belonging to Leitch, and was indebted to Leitch, and prayed that garnishee process might issue. A garnishee precept was thereupon issued against Johnson, requiring him to appear on the 3d of August, 1875, and make disclosure in writing and under oath. The writ was directed to the sheriff, and he was ordered to make due return on the 3d of August, 1875. Instead of being put into the hands of an officer for service, the writ was given to one Butler, a clerk in the office of the attorneys for Delbridge and Hubbell, and it was returned to the court with the following endorsement on it:
“Manistee, June 22, 1875.
“I hereby admit due personal service on me of the within writ of garnishment.
“(Signed). J. A. Johnson.”
Dpon the hearing, an elaborate argument was made against the constitutionality of some of the provisions of the garnishee law, but there is no occasion to examine that subject.
The judgment against Johnson was clearly erroneous, for the reason that the court had no evidence before it that any service had been made upon him. Before default can be taken there must be positive and sufficient evidence in court of due service, and no substantial defect in that respect .can be cured by subsequent knowledge of the fact. If it is not shown to the court that the party has been duly notified, it cannot appear to it that he is in default. — Eaton v. Eaton, 33 Mich., 305; Denison v. Smith, 33 *Mich., 155; Litchfield v. Burwell, 5 How. Prac., 341; Executors of Doolittle v. Executors of Ward, 5 J. R., 359; 1 Burrill’s Prac., 370.
The writing purporting to be an admission of service here by Johnson was no evidence, by itself, to authorize the entry
The facts seem to warrant a remark upon another feature.
Judgment passed against Johnson on the assumption that he admitted his liability over in the case. He was not principal debtor, and he owed no duty in that character to plaintiffs, and in case the plaintiffs had shown themselves entitled to judgment against him on his default, there could have been no justice in visiting him with the costs they incurred in carrying! the action to a decision, requiring him to pay them instead of their delinquent debtor, and the court is of opinion that in these proceedings against *garnishees, when'; the garnishee makes no active opposition and allows
The judgment must be reversed, with the costs of this court and the proper costs of Johnson in the court below in the attempt there made to have the judgment against him set aside.