285 N.W. 457 | Mich. | 1939
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *566
Another phase of the present litigation, as set forth inWalden v. Green,
In 1932, plaintiff, after foreclosing a mortgage in the circuit court for the county of Montcalm, given by John J. Springsteen and wife to the Peoples State Bank of Sheridan, and obtaining a deficiency decree, levied upon lands in Cass county belonging to the Crego estate, in which Springsteen was an heir. No further proceedings were taken under the levy and the land was ordered sold. At such time, Jesse Green, as administrator, filed a bond for the sale of the realty. On June 18, 1935, the court's attention was directed to the levy made against the lands of the estate in order to reach the share of John J. Springsteen, and the court entered an order in which it was stated that the administrator was required to hold the share belonging to Springsteen until the levy was discharged and the land freed from the levy and all liability under the judgment referred to in the levy. On June 24, 1935, the probate court of Cass county made a general order for partial distribution of moneys on hand to the various heirs, including a payment of the sum of $4,500 to John J. Springsteen, a cousin, but directed in addition that *568 the administrator "retain that portion hereby assigned to John Springsteen until the further order of this court, it appearing that said interests have been attached by a bank for judgment obtained against him." While the wording of the order is somewhat vague, there can be no doubt that this order, as well as the previous one, definitely authorized the payment of $4,500 to John J. Springsteen, subject, however, to a release of the levy.
On September 5, 1935, an original suit against Springsteen was commenced by plaintiff in the Montcalm circuit court, based on the decree for the mortgage deficiency, and at the same time a suit in garnishment was brought against the administrator of the Crego estate. The administrator disclosed that, while he held other funds belonging to the estate which had not been finally apportioned to the heirs, the sum of $4,500 had been apportioned to Springsteen as his distributive share. No mention was made of the probate orders directing the garnishee defendant to hold Springsteen's share until further notice from the court. The administrator denied, however, that the funds in his hands were subject to garnishment. Judgment was rendered against the administrator, as garnishee defendant, in the sum of $4,500.
In the instant case, permission to bring suit against the administrator and his sureties on both his general bond and the bond filed at the time the realty was sold, because of Green's failure to pay this judgment, was denied plaintiff in the probate court. On appeal, the circuit court reversed the decision of the probate court and entered an order granting, such permission. Defendant administrator has appealed.
Appellant raises a number of objections to the validity of the garnishment judgment rendered December *569
24, 1935. No appeal was taken from the judgment. Furthermore, the garnishee defendant waited almost a year before he moved to vacate it. An order was entered denying that motion. While the motion to set aside the judgment against the administrator states that it was made by the garnishee defendant, and the order refers to the Dowagiac National Bank, the motion itself refers to the judgment of December 24, 1935, which was rendered against the administrator. The designation of the Dowagiac National Bank was evidently a clerical error. The circuit court took this view and the testimony supports his interpretation. The judgment against the garnishee having become final, it cannot be attacked for alleged technical defects in the proceedings. It may be collaterally impeached only if jurisdiction was absent in the court. Weiss-Kemnitz Co. v.Ehlert,
It is such lack of jurisdiction that appellant particularly urges in various assignments of error. Foremost is the claim that the defendant, being an administrator, was not subject to garnishment process, and that for this reason there was a failure of jurisdiction over the person. While there are dicta in some of the earlier Michigan cases suggesting that administrators and executors are not subject to garnishment, it is clear that under Hudson v. Saginaw Circuit Judge,
The fund sought in the garnishment proceedings was only that which the court had ordered distributed previous to the garnishment proceedings and not that for which no order of distribution had been made. The defendant administrator became "directly and absolutely accountable to the principal defendant" under the orders of the probate court, June 18, 1935, and June 24, 1935. The latter order, in particular, was a general and final decree of distribution to the nine heirs of Jane Newton Crego, including John J. Springsteen. Unless directly appealed from, it was binding on all the heirs and could not be collaterally attacked. In re Estate of Taylor,
Its character as an absolute allotment to the heirs is not affected in whole or in part by the court's further direction to defendant Greene to hold up the actual delivery of the moneys to Springsteen until his interest was cleared of plaintiff's levy. While that direction may have restricted Springsteen's enjoyment of the funds, we do not regard it as making *571 "conditional" what purports to be an unconditional order of distribution, so as to prevent garnishment of the administrator within the rules above set forth. In applying those rules we cannot forget the reasons which produced them. The personal representative of an estate is not to be embarrassed by a succession of writs issued against him, impeding his administration and complicating the winding up of the estate. But there is no reason why the shares of the distributees should not be subjected to payment of their just debts when the shares have been assigned and nothing remains to be done by the administrator save to turn over the funds. There is nothing in this record which indicates any irregularity in payment of the shares to the other heirs apportioned by the same order of June 24th. There is no claim that any remaining claims of creditors of the estate could not be satisfied adequately out of the still undistributed property of the estate. There is nothing indefinite about the share apportioned to John J. Springsteen. Defendant administrator himself regarded the moneys as absolutely due and owing Springsteen; his disclosure denied liability simply on the ground that as an administrator he was not subject to garnishment process. By allowing such process against him, his work as administrator is in no way impeded; the probate court is in no way interfered with; the only interest that appellant is trying to protect is that of a debtor seeking to evade payment of his creditors.
The sole reason for the direction to defendant to retain Springsteen's share was to safeguard plaintiff's interest in that share, which he had derived by virtue of his prior attachment. It would carry technical considerations to an extreme were we to defeat plaintiff's subsequent garnishment judgment because *572 of these previous orders made for his benefit. By the writ of garnishment he sought to reach the identical interest reached by the levy, and, under the circumstances of the present case, the protection provided him by the probate court should not now be used to his prejudice.
Finally, if there was any irregularity in the garnishment proceedings, it could have been regularly challenged by appeal from the judgment rendered December 24, 1935, or appeal from the denial of the administrator's motion to set aside that judgment, made December 17, 1936. Instead, defendant waited until August, 1938, before making a collateral attack on the judgment. Within the rule we have recently laid down inJoy v. Two-Bit Corporation,
The garnishment suit was begun in the circuit court for the county of Montcalm while the writ was served in the county of Cass. The affidavit for writ of garnishment failed to state the residence of the garnishee defendant and it is claimed that this was a fatal defect. Such irregularity was cured when the garnishee defendant filed a disclosure and respected the writ.Nichol v. Nevers,
Another objection to the court's jurisdiction is urged because the affidavit of garnishment read that this "deponent further says that he is justly apprehensive of the said sum of $5,247.87," et cetera. Use of the word "deponent" instead of the word "affiant," as set forth in 3 Comp. Laws 1929, § 14857 (Stat. Ann. § 27.1855), is claimed to be a fatal error. We have never said that the affidavit must be a verbatim repetition of the language of the statute. A deposition is a general expression embracing all written evidence verified by oath, including affidavits. Baker v. Magrath,
Objection is further made that defendant left out the words "of the loss," as set forth in the quoted statute. While garnishment is a statutory proceeding and that statute must be strictly observed, nevertheless amendments have been permitted where a clerical error is clearly shown. Appellant not only filed a disclosure without objection, but he does not contend that he was in any way misled by the omission of the words, and the trial court apparently considered the affidavit as amended. If not, we shall consider it so amended. Wattles v. WayneCircuit Judge,
There can, therefore, be no doubt that the judgment rendered against appellant December 24, 1935, was regularly entered and, being unappealed from, was a valid outstanding claim against the administrator, which he has not paid despite demand. Nevertheless, it is argued that his failure to make payment does not occasion any liability on his bonds. We do not think there can be any doubt that the *574 holder of a garnishment judgment against an administrator for moneys absolutely due a distributee is a "person aggrieved by such maladministration" of the estate within the meaning of 3 Comp. Laws 1929, § 15936 (Stat. Ann. § 27.3135). As such, appellee could properly apply for permission to sue on the administrator's bond (3 Comp. Laws 1929, § 15939 [Stat. Ann. § 27.3138]); the circuit court correctly granted him such permission.
It is not necessary, as appellant asserts, that a breach of the bond be conclusively shown to exist before the order allowing a suit on the bonds is justified. So much is implicit in our holding in Robbins, for use of Wood, v. Burridge,
The order of the trial judge is affirmed, with costs to plaintiff.
WIEST, BUSHNELL, SHARPE, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred. *575