Van Benschoten v. Fales

126 Mich. 176 | Mich. | 1901

Long, J.

The defendant is a deputy sheriff for Ionia county, and on the 29th day of July, 1899, at the city of Belding, levied an attachment upon the goods in controversy in favor of Henry Stern and Gotthilf Bloch, copartners, doing business under the firm name of Stern '& Bloch, and against John V. Cahill and William Hudson, copartners, doing business at Belding, Mich., under the firm name of Cahill & Hudson. The writ issued' on the 27th day of July, 1899, and was made returnable on the 5th day of September following. A proper inventory and appraisal of the goods was made on the date of the levy. The affidavit for the writ recited that the names of the defendants in the attachment suit were George V. Cahill and William Hudson, and the writ was issued against George Y. Cahill and William Hudson. After the issuance of the writ, the plaintiffs discovered that Cahill’s name was not George Y. Cahill, but was John Y. Cahill. On the 12th day of September, 1899, the sheriff made his return to the writ, with the inventory and appraisal attached, which return showed that he had been unable to find either of the defendants, and that neither of them had been served with the writ. The next day the plaintiffs caused an alias writ to be sued out against John Y. Cahill and William Hudson as copartners, in which it was recited that John Y. Cahill had been “erroneously named in the original writ as George Y. Cahill,” which writ was on the 18th day of September served upon William' Hudson at the city of Greenville, Montcalm county. The service on Hudson was made by delivering to him a certified copy of the alias writ, and certified copy of the original writ, and affidavit, inventory, and appraisal, and the return of the officer to the original writ; and on the 4th day of October the sheriff made his return to the alias writ, with his doings thereunder.

The plaintiffs in this case claimed the goods by virtue of two bills of sale, dated the 10th day of July, 1899, and the 5th day of July, 1899, and under that claim, on the 18th day of August, replevied the goods from defendant, Fales, who was holding them by virtue of the writ of attachment; and afterwards, and on the 30th day of August, 1899, filed their declaration in this cause, to which the defendant pleaded the general issue, and gave notice thereunder that he would justify his possession by virtue of the writ of attachment.

The case came on to be heard before the court at the city of Ionia on the 22d day of December, 1899, before a jury. The plaintiffs gave evidence tending to show their right of possession by virtue of their bills of sale, and rested. Then the defendant, to maintain his case, offered in evidence the writ of attachment, together with the inventory and affidavit, and the returns and proceedings of the officers had in the attachment case. To the introduction of the attachment proceedings, plaintiffs, by their attorney, made the following objections :

1. That there was no legal service made upon either of the defendants, and only an attempted service made upon Hudson, which was void because the court had*no jurisdiction to issue an alias writ of attachment.

2. That the affidavit was defective because it did not allege that each defendant was guilty of the wrong charged.

3. That the affidavit was not sufficient to support a writ of attachment against John V. Cahill and William Hudson, copartners, and no new affidavit was made, and the existing affidavit was not amendable.

4. That the court obtained no jurisdiction in the attachment suit, because it does not appear from the officer’s return that he had attached the property of John V. Cahill and William Hudson.

Counsel for defendant, Bales, thereupon moved to amend the writ and affidavit in the attachment case, changing the words “George V. Cahill” to “John V. Cahill.” This motion was denied, and the court directed the verdict in favor of plaintiffs upon the following grounds:

(а) That the affidavit in the attachment case did not state with sufficient certainty that the wrong or fraud was committed by each of the individuals comprising such copartnership.

(б) That the misnomer of George V. Cahill for John V. Cahill in the affidavit for the writ of attachment could not be cured by amendment.

(c) That there is no authority in law for the issuance of an alias writ of attachment.

It is conceded that the statute does not authorize the issuance of an alias writ of attachment, nor prohibit it; but counsel for defendant contend that the question is governed and controlled by Circuit Court Rule No. 1, subd. b, which provides for the issuing of alias and. pluries original writs. On the other hand, counsel for plaintiffs claim that an attachment is not an original writ, but a special writ issuing under the statute, which must be strictly followed, and that it resembles an original writ only in the fact that it is prescribed by the statute that it shall bear an indorsement for security for costs, and that it is to be dated and signed and made returnable on the same days as original writs. It is the-further claim of counsel for plaintiffs that no rule of court can extend the power of the statute and give validity to proceedings not in compliance with it; that the court cannot, therefore, by rule, aid in enlarging the writ by providing for an alias.

We think the Supreme Court had ample power to make this rule, and that it applies, and-was intended to apply, to writs of attachment. The Constitution of this State, by article 6, § 5, provides:

“The Supreme Court shall, by general rules, establish, modify, and amend the practice in such court and in the circuit courts, and simplify the same.”

Stevens, in his new work on Michigan Practice (section 22 d), says in regard to this rule:

“Prior to the adoption of the revised rules, there was no provision for the issue of an alias writ of attachment. The rule now applies to all original writs, and authorizes an alias and pluries writ, under certain restrictions. * * * If the only purpose in issuing the alias or pluries writ is service on the defendant, its function is only that of a summons, and in-such case no new affidavit is necessary; but, if the alias or pluries writ is desired for the purpose of authorizing a seizure of property, a new affidavit must be made and annexed to the alias or pluries writ, in order to meet the requirement that no writ of attachment shall be executed without having annexed thereto an affidavit, and to show a continuance of the cause for attachment down to the time of issuing the alias or pluries writ. It is obviously improper to detach the original affidavit from the original writ, and annex it to an alias or pluriesj and a new affidavit, where property is to be ■seized, would seem absolutely essential to the validity of the alias or pluries writ.”

In the present case, the property had been seized under the original writ, and all that remained to be done was to summon the defendants, and service was had in accordance with the rule. The case is very different from one where the statute has provided a rule of practice, as in the case of Ismond v. Scougale, 119 Mich. 503 (78 N. W. 546), cited by plaintiffs’ counsel. An alias writ is permitted to issue in replevin cases. Maxon v. Perrott, 17 Mich. 332 (97 Am. Dec. 191); People v. Mecosta Circuit Judge, 26 Mich. 414. These cases were decided, however, before the revision of the rules; and counsel for plaintiffs contend that this being a common-law writ, and not like an attachment writ, the same rule cannot be applied. Counsel cite the case of O’Brien v. Haynes, 61 Ill. 494, in which it was held that an alias writ of replevin could be issued, and also the case of Pack, Woods & Co. v. American Trust & Sav. Bank, 172 Ill. 192 (50 N. E. 326), in which the same court held that there was nothing in the statute which authorized the issuing of an alias writ of attachment. Other Illinois cases are cited to the same rule. Those cases, however, have no bearing upon the question involved here. We think that, under the power vested in the Supreme Court by our Constitution, the rule was properly made, and that it has the same force and effect as a statutory provision. The court was therefore in error in holding that no alias writ could issue.

We think the affidavit sufficiently charged both defendants with a wrong. It recites that “this deponent has good reason to believe, and does believe, that the said George V. Cahill and William Hudson have assigned, disposed of, and concealed, their property with intent to defraud their creditors.” This question is ruled by Smith v. Runnells, 94 Mich. 617 (54 N. W. 375); Cottrell v. Hatheway, 108 Mich. 619 (66 N. W. 596).

We think the court erred in holding the attachment proceedings void by reason of tbe misnomer in the given name of Mr. Cahill. Under the decisions of this court, the defendants were sufficiently described, and no officer or other person could have made any mistake as to the parties described in the affidavit and writ of attachment. Cahill & Hudson was the only firm of that name in the-little village of Belding. It is not, and cannot be, urged that the defendants were not sufficiently identified. The mistake was corrected in issuing the alias writ, and fully explained. That suit was still pending when this one was tried. In my judgment, the case is ruled by Barber v. Smith, 41 Mich. 138 (1 N. W. 992), and Emerson v. Detroit Steel & Spring Co., 100 Mich. 127 (58 N. W. 659).

Judgment reversed, and new trial ordered.

The other Justices concurred.