104 Mich. 390 | Mich. | 1895
Martin was a constable, having given the statutory bond of $2,000. He collected $135.11 and costs, amounting in all to $144.50, from one Haggerty. At the time, he had in his hands an execution in the . case of Nelson & Moorey v. Haggerty for $133.61 damages and $1.50 costs; At the same time he had in his possession an execution against Nelson & Moorey ads. Wheeling & Lake Erie Coal Company. He also had what he calls a “body execution" against Haggerty, Garnishee of Nelson & Moorey, ads. Wheeling & Lake Erie Coal Company. These last two writs are not shown by the record, but it seems to be conceded that the “body execution" was an attachment against Haggerty for not appearing in obedi
Montgomery & Lord, the plaintiffs, are lawyers, who procured the judgment in the case of Nelson & Moorey v. Haggerty. They base their claim in this action upon an assignment reading as follows:
«May 15, 1893.
«For a valuable consideration, to me in hand paid by Montgomery & Lord, attorneys at law, the receipt whereof I hereby acknowledge, I, Alexander Nelson, of Detroit, do hereby assign, sell, transfer, and set over to the said Montgomery & Lord all my right, title, and interest in or to the claim now owing to me from H. H. Haggerty, and now in litigation in the justice’s court of the city of Detroit, before Justice John B. Teagan, with full power to sue for and collect the same.1
«Detroit, Michigan.
«Alexander Nelson. [L. S.] ”
They contend that they were entitled to the amount collected, and to bring an action under section 6988, How. Btat., reading as follows:
«If a constable shall neglect or refuse to return an •execution, and pay over the moneys by him collected, within five days after such execution shall have been paid, or shall neglect to levy an execution, or otherwise execute the 'same according to law, the party in whose favor such execution was issued, or who shall be entitled to such moneys, may maintain an action of assumpsit, in his own name, upon the instrument of security given by such constable and his sureties; and in such suit the amount of the execution, with interest from the time of the rendition of the judgment upon which the same was issued, shall be recovered; and execution shall issue forthwith, and no stay of execution shall be allowed.”
The first contention is based upon the proposition that juris
It is next contended that the right of recovery conferred by section 6988 applies only to the plaintiff named in the execution, and does not extend to the owner of the judgmént through assignment. The statute says the action may be brought by “the party in whose favor such execution was issued, or who shall be entitled to such moneys.” By this we understand that the party in whose interest the money is received may bring the action, and that it is not confined to. one “ whose right to the money has been adjudicated.”
Alexander Nelson, a witness for the plaintiffs, testified that he and Moorey were partners. He was then asked the following: “Q. At the time the suit was brought, did the money belong to you or to the partnership?” Against defendants’ objection that it asked for a conclusion of law, he was allowed to answer, “To me alone.” It cannot be doubted that this involved a conclusion. Counsel asserts that this was not so, “ because there was no evidence before the court from which the judge or jury could have concluded the answer at that time.” If that
Eor the admission of this testimony, we think the judg
Judgment was rendered May 17, 1893.