Williams v. International Grain & Stock Board

99 Mich. 80 | Mich. | 1894

Grant, J.

The records in these cases are identical. The praecipe and summons in each did not describe the principal defendant „as a foreign corporation or as a nonresident of the State. The affidavit for the writ of garnishment, which was made and filed at the same time that the praecipe was filed and the summons issued, stated that—

“ The said defendant is a non-resident of this State, and a corporation created by the state of Illinois.”

The affidavit* is in compliance with How. Stat. § 8087, under which the proceedings were instituted. This section will be found in full in Newland v. Circuit Judge, 85 Mich. 152.

It is contended that the court had no jurisdiction in the principal case, because the defendant therein was not described in the praecipe and summons as a foreign corporation, and therefore it must be inferred that the defendant named was a domestic corporation. Such particularity is not required in the praecipe and summons. It is sufficient to state therein the names of the parties to the suit. The declaration must state the character of the parties plaintiff and defendant, and the capacity in which they sue and are sued. The praecipe and summons do not state whether the plaintiffs sue as copartners or otherwise. This may be stated in the declaration. So it may be stated therein whether the defendant is a domestic or a foreign corporation. The statements in the affidavit determine the jurisdiction off the court to issue the writ of garnishment, where there are proper plaintiffs and defendant in the original suit. This affidavit, with the principal writ and writ of garnishment, is required to be served' on the principal defendant within' 60 days after service of the writ of garnishment on the garnishee defendant. The statute requires that the affidavit, not the principal summons, shall contain the evidence of non-residence, or that the defendant is a foreign corporation. This fact, therefore, need not be shown in the principal summons.

The affidavit in each -case was made by one of the plaintiffs, and stated all the requirements of the statute, and that the said plaintiffs “are justly apprehensive of the loss,” etc., “ unless a writ of garnishment issue.” In Weimeister v. Manville, 44 Mich. 408, the affidavit was held defective because the agent of the plaintiff, who made the affidavit, swore that the plaintiff was justly apprehensive, — a fact which he could not know. Where the affidavit is made by one of the plaintiffs, and he swears that they are justly apprehensive, it must be presumed that he has personal knowledge.

We think the court was in error in quashing the proceedings, and the judgments are therefore reversed.

The other Justices concurred.