Montgomery v. Martin

| Mich. | Mar 19, 1895

Hooker, J.

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 obedience to a garnishee summons. It appears that the money was collected upon the execution first mentioned. Defendant Martin says that he took the money to the justice, who refused to accept it, and that the execution was never returned, or the money paid over to any one.

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 jurisdiction depends upon the amount of the bond, and that, where the penalty exceeds $300, the justice has no jurisdiction. This overlooks section 6988, which provides for an action of assumpsit, upon a constable’s bond in behalf of the person entitled to moneys which the constable refuses- or neglects to pay. It authorizes a judgment for the amount, with interest and costs. In this it differs from cases arising upon probate bonds, where the judgment is taken for the amount of the penalty of the bond, scire facias being resorted to on further breaches. Probate Judge v. Dean, 52 Mich. 387. See, also, Bishop v. Freeman, 42 Mich. 535; Gray v. Stafford, 52 Id. 497. The statute mentioned (section 6988) confers jurisdiction upon justices of the peace in cases like this.

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 is so, it would seem that the answer was the more objectionable. It permitted the witness to determine from his knowledge of the facts the question of ownership, which was one of the questions in dispute. Counsel admitted that “it was material to show to whom this money belonged at the time the suit was brought, before the plaintiffs could properly introduce evidence to establish their right to recover in this action.” This was all the testimony given in behalf of the plaintiffs from which such ownership could be found. Nelson did not qualify it by stating any facts in relation to it. Upon behalf of the defendants, Moorey testified that this bill was in court at the time the partners ceased doing'business together, and that it was never agreed that Nelson should have the ■money on that bill, but it was agreed that the Wheeling & Lake Erie Coal Company should have it. Here, then, were certain facts and circumstances that tended to show that Nelson did not own the claim, and the only evidence to the contrary was the wholesale statement by Nelson that he owned it. Clearly he testified to a conclusion, and this in the face of an objection that apprised counsel that this was a disputed question; and it is as plain that it was-not cured by any subsequent version of the facts and circumstances which tended to show such ownership. The evidence in the case does not show that Nelson was expressly authorized to assign this claim to the plaintiffs, and, if it be contended that as partner he might lawfully sell the firm’s interest, it was still important to know what his interest actually was, as the assignment only disposed of his right, title, and interest, and did not purport to convey the interest of the firm. If, as he said, he owned the whole claim, the assignment conveyed it; otherwise not.

Eor the admission of this testimony, we think the judgment should be reversed, and a new trial directed. It is-ordered accordingly.

Long, Grant, and Montgomery, JJ., concurred. Mc-Grath, O. J., did not sit.

1 Judgment was rendered May 17, 1893.