Union National Bank v. Muskegon Circuit Judge

117 Mich. 678 | Mich. | 1898

Per Curiam.

April 12, 1898, relator caused a writ of garnishment to issue out of the Muskegon circuit court. The writ was personally served on the garnishee defendants, who answered, denying all liability, and thereupon moved the court to dismiss the writ for the reasons (1) that the affidavit for the writ was made and sworn to on April 11th, one day before'the writ issued; (2) that the affidavit is contradictory, in that it states that “ said cause is a personal action, arising upon an implied contract, upon which defendant is indebted to plaintiff in the sum of $26,-250,” and in the next paragraph it states: “ Said sum of $26,250 is due said plaintiff from said defendant on a certain judgment rendered against said defendant, Amazon Hosiery Company, 'by the circuit court of Cook county, in the State of Illinois, said court being a court of record and of general jurisdiction, in a suit wherein the said Union National Bank of Chicago is plaintiff and the said Amazon Hosiery Company is defendant.” This motion was granted by the court, and the writ of garnishment dismissed.

The record.shows that the date of April 11th in the affidavit is an error, as no suit was in fact commenced until April 12th. An amendment of the date should have been permitted. Millard v. Lenawee Circuit Judge, 107 Mich. 134; People, ex rel. Dickinson, v. Simondson, 25 Mich. 113. See, also, Wattles v. Wayne Circuit Judge, ante, 662.

The affidavit for the writ is not contradictory in its terms. While the action is upon a foreign judgment, it is upon contract, within the meaning of the statute. Wattles v. Wayne Circuit Judge, supra, and cases there cited.

The order quashing the writ of garnishment must be reversed, and the writ reinstated, with costs in favor of relator.