33 Mich. 65 | Mich. | 1875
. The defendant in error, a foreign corporation, was summoned to appear and answer in justice’s court as garnishee of Gilbert Travers, under sections 6463 and 6439 of the Compiled Laws.
The summons was issued February 3, returnable on the 13th, and was personally served upon Ira Worcester, the general agent of the company in this state, authorized to receive service of process. On the return day the cause was by consent adjourned until the 17fch of February, when
We think the justice erred in considering the answer of the garnishee, as made and sworn to by Mr. Worcester, insufficient, and thereupon rendering judgment as though no answer had been put in. Whatever might have been the position of the company until the time the second disclosure was filed, yet after the filing of that disclosure the company could no longer be considered as in default. It is only when the company fails to answer through its proper officer, that the corporation can be held to be indebted to the defendant on the original suit. The statute is clear and explicit, that “the summons may be served upon the general or special agent of the corporation, and it shall be the duty of such officer so sued (served), or of the proper officer of such corporation having knowledge of the facts, to appear before the justice at the return day of the summons,” to answer, etc. Worcester was the officer of the company upon whom the summons was served, and it therefore became his duty to appear and answer. Such
This answer having been put in, the company was no longer in default. The proceedings thereafter must be “in the same manner and with the like effect as against individuals.” Unless the answer, therefore, disclosed a liability on the part of the company to the principal defendant, the justice had no authority to render judgment against the company. This the answer did not do. It went farther and denied any liability. True, it appears that Mr. Worcester did not have personal knowledge of all the facts stated by him in his disclosure. In the very nature of things this could not well be otherwise in the case of a foreign corporation. This, however, does not help the plaintiffs. The answer is the evidence on their part, and unless it affirmatively, by competent evidence, discloses a liability by the corporation to the principal defendant, they cannot recover.
The judgment of the justice’s court having been reversed in the circuit, the garnishee defendant was entitled to its •costs, and no question is raised by the assignments of error •as to the form of the judgment in this respect. The questions sought to be raised on the taxation of costs cannot be brought up by writ of error in this manner.
The judgment of the court below must be affirmed, with costs.