3 Mich. 18 | Mich. | 1853
The principal assignment of error, and the one mainly relied upon by the plaintiffs in error, is that the Commissioner had no jurisdiction in the-matter; had no power to order the attachment to be dissolved after the defendants had given a bond to the Sheriff, and then procured a release of the attachment — received back the property attached; and after they had appeared in the case and plead issuably to the declaration filed therein.
By the provisions of § 5, Chap. 114, of the R. S. 1846, relating to proceedings by attachment, the writ of attachment shall command the Sheriff or other officer to whom it may be directed, to attach so much of the lands, goods, &c., of the defendants, as will be sufficient to satisfy the plaintiff’s demand, and also, to summon the defendant, if to be found within the State, to appear and answer.
Section 17 provides that if it appear upon the return of the writ, that a copy thereof lias been personally served upon the defendants, or either of them, or if either of the defendants shall appear in the suit, the same proceedings may be thereupon had in such suit, in all respects, as upon the return to an original writ of summons personally served in a suit commenced by such summons.
By the provisions of the 18th Sec. “if it appear by the return of the writ, that any'property has been attached-thereon, and that neither of the defendants could be found, then the plaintiff shall cause a notice to be published,” &c., and may therefore proceed to final judgment. So that it will readily be perceived, that whether property be found or not, the suit may be proceeded in, where it appears that there has been a personal service upon the defendants, and therefore that ah attachment of property is not necessary, to give the Court jmisdiction of the action.
By virtue of the provisions of sections 13, 14, and 15 of said act, if the defendants or party in whose possession the
Section 1 of the amendatory act, (act No. 125, session laws 1851,) provides that in all cases where a writ of attachment has been, or shall be issued, and served under the provisions of law, it shall be lawful for any. defendant, whose property may he attached by virtue of such writ, to apply to the Judge of the Circuit Court, or to the Circuit Court Commissioner, where the writ issued, for a dissolution of such attachment, that upon the presentation of such application, the Judge, or Commissioner shall issue a citation to the plaintiff in attachment, requiring him to show cause why the attachment should not ¡be dissolved, and the property restored to the defendant, that upon the return of the citation, or on such other day as the Judge or Commissioner may appoint, there shall be a hearing of the parties, and if upon such hearing, the Judge Commissioner should be satisfied that the plaintiff had not a good and legal cause for suing out such writ, he shall order 4he attachment to be dissolved, and the property to le restored to the defendant, the same end being obtained so far as ithe property attached is concerned as by the giving of a Ibond under the original act. But where a party, defendant; Instead of having the validity of the attachment inquired inte», under the provisions of the amendatory act, elects in the fest instance, to give his bond under the original act, and in Shat way obtain a release and restoration of his property, he