Schall v. Bly, 43 Mich. 401

Schall v. Bly

43 Mich. 401 | Mich. | 1880

Graves, J.

The circuit court quashed an order of the circuit court commissioner dissolving an attachment sued out by Bly against Schall’s property. The ground on which the writ was obtained was that they were about to dispose of their property with intent to defraud their creditors, and the property levied on consisted of land and growing wheat.

The commissioner, in entertaining the proceedings, acted within his jurisdiction. The sufficiency of the application has not been questioned. There were later levies by other parties on the land, and the point is made that this cut off the debtor’s right to proceed for a dissolution. The objection is not valid. Neither levy operated to dispossess them (Smith v. Collins 41 Mich. 173), and they were not bound to submit in silence to a levy which they considered as based on an untrue statement against their honor and good faith, merely because other persons had subsequently levied on the same property. As the actual possession continued in the debtors there was no question concerning restoration to interfere. Smith v. Collins, supra.

The circumstance that the same counsel who acted for the debtors before the commissioner was the attorney of the later creditors is of no importance. There is no law which hinders an attorney from appearing for a party in one transaction and against him in another wholly distinct from it, merely because a third person interested in the first takes exception.

Before the commissioner the case turned upon the facts, .and he received all the evidence offered and found as matter of fact that the creditor had not good and *403legal cause for suing out the writ. That the evidence produced was sufficient to call for the exercise of his judgment is very plain, and that being so his conclusion upon it is final. It has been decided several times that this court has no power to review upon the facts (State Bank of Fenton v. Whittle 41 Mich. 365; Hyde v. Nelson 11 Mich. 353; Linn v. Roberts 15 Mich. 443; Brown v. Blanchard 39 Mich. 790) and the rule equally applies to the circuit court. That tribunal has an authority peculiar to itself in case of original motions in court to quash attachments, but the proceeding by certiorari to a commissioner is very different. The refusal of the commissioner to pass on the objections as they were made worked no prejudice. Eulings in regard to admitting evidence are not reviewed on certiorari in this class of cases, and if the commissioner had explained his decisions they would not be re-examined.

The circuit court erred in quashing the order of the circuit court commissioner, and the determination is reversed with costs.

The other Justices concurred.