62 Mich. 414 | Mich. | 1886
The plaintiffs began suit January 7, 1885, against the principal defendant, Frank T. Mirick, and obtained judgment against him, after withdrawal of his plea of general issue, April 17, 1885.
On the same day as the commencement of the principal suit a writ of garnishment was served on the defendant George R. Mirick. January 21, 1885, he filed his disclosure, denying any indebtedness to the principal defendant, or the possession of any property or money belonging to him, but alleging therein that, upon the service of said writ, the said Frank T. Mirick was indebted to him in the sum of $5,982.14, and had before then executed to him a chattel mortgage on certain property to secure him, which mortgage reads as follows:
“ This Indenture, made the fifth day of January, in the year of our Lord 1885, between Frank T. Mirick, of the city of Adrian, Lenawee county, Michigan, of the first part, and George R. Mirick, of the same place, of the second part, Witnesseth:
“ That whereas, the said first party is now justly indebted unto said second party in the just and full sum of five thousand and nine hundred and eighty-two dollars and fourteen*417 cents, which he is anxious to secure and pay, which is now due and payable to the said second party; the said first party, in order to secure and provide for the payment thereof, and in further consideration of one dollar to him in hand paid by the second party, the receipt whereof is hereby confessed, and acknowledged, hath granted, bargained, sold, mortgaged, and conveyed, and by these presents doth grant, bargain, sell, mortgage, and convey, unto said second party, all and singular the stock of goods and the personal property and fixtures of every kind and nature now in the possession of the said first party in the store now occupied by him at No. 15 Maumee St., in the city of Adrian, Michigan, excepting trunks, satchels, and traveling bags, which are not the property of the said first party.
“ To have and to hold, to the said party of the second part, his representatives and assigns, forever: provided always, and these presents are upon this express condition, that the said party of the second part shall at once enter into possession of the property hereby mortgaged and conveyed, and proceed to sell and dispose of the same, or so much ' thereof as may be necessary to satisfy said debts and costs, at all convenient speed, at either public or private sale, as he may deem best, and out of the proceeds of such sale, first . pay the costs and expenses incurred by him in selling and disposing of the said property, and the custody and care of the same; and, second, out of the balance of the proceeds over and above such costs and expenses, pay himseelf the said sum of 5,982 dollars and 14 cents, together with interest thereon from this date; and, third, if any surplus shall remain after the payment of such costs and expenses and indebtedness and interest, the same shall be paid by the second party to this first party, his representatives and assigns.
“And for the better enabling the second party to sell and dispose of the said stock of goods and personal property, the said first party hereby sublets to the second party the premises now occupied by the said first party in said store during such time as the second party may desire the same.
“ In witness whereof, the first party hath hereunto set his hand and seal, this fifth day of January, 1885.
“ Frank T. Mirick.” [l. s.]
He also averred in his said disclosure that on the delivery to him of said mortgage, January 5, 1885,’ he took immediate possession of the property under and by virtue of the mortgage, and at the time of the service of the writ upon
February 5, 1885, plaintiffs filed a petition alleging that the garnishee had advertised the stock of goods for sale, under his mortgage, denying the validity of the mortgage, asking for an examination of the garnishee under oath, and that he deliver the goods to a circuit court commissioner, as a receiver, to be disposed of under the direction of the circuit court.
' This motion was resisted, but February 1, 1885, the court made an order directing the transfer of the property to George L. Bennett, circuit court commissioner, to hold the same until the validity of the mortgage could be determined, and staying the sale commenced under the mortgage by the garnishee. A motion was subsequently made to vacate this order, and denied. The defendant then brought the matter into this Court by mandamus, and, after return and hearing upon an order to show cause, a peremptory mandamus was granted April 22, 18S5, modifying said order, and directing that the property be inventoried and sold by the commissioner, and that out of the proceeds of such sale he pay the said mortgage in full to said George R Mirick, with interest and costs, or that the plaintiffs might pay said mortgage, and thereupon the commissioner retain such property.
April 23,1885, on motion of plaintiffs’ attorneys, the order of the circuit court was set aside and canceled by that court.
January 30, 18S6, upon atrial of the garnishee issue before a jury, the circuit judge directed a verdict for the plaintiffs.
The counsel for the plaintiffs in their brief admit that, if the instrument executed by Frank T. Mirick to the garnishee defendant is a chattel mortgage, there was error in the proceedings of the court below, as the circuit judge instructed the jury to find for plaintiffs upon the theory that
"We are clearly of the opinion that the instrument is a chattel mortgage. The fact of its not containing a defeasance does not determine its character. It clearly and expressly appears from the instrument itself that it was given ■as a security for an alleged indebtedness, and this fact stamps it as a mortgage: Cooper v. Brock, 41 Mich. 488.
The question of the bona fides of the debt which it purported to secure should have been submitted to the jury, as requested by defendant’s counsel.
The counsel for the defendant insisted all through the ■trial in the court below, and argue here, that the validity and good faith of this mortgage was decided in this Court, •orally, upon the mandamus proceedings, and that such is the evident purport of the peremptory writ as issued ; that •such decision is res judicata, and that the garnishee proceedings should have been quashed.
My brethren, who were all members of the Court at the time of the mandamus proceedings, it being before my service upon the bench, are of the opinion that this is the correct view of the effect and meaning of the order in man■damus entered in this Court.
Therefore the judgment of the circuit court will not only ■be reversed, but a judgment will be entered here quashing the garnishee proceedings, with costs of both courts to the _garnishee defendant. • ■
