Rowe v. Kellogg

Campbell, J. On the 6th of November, 1883, plaintiff levied an attachment on a considerable amount of real property belonging, or seized as belonging, to defendants. On the 9th of the same month, defendants, who were partners, made a general assignment to Edwin J. Phelps and Edwin Byles. In February, 1884, two petitions wmre filed to dissolve the attachment, — one by the assignees, in their own name and behalf, to remove it from the assigned property, and one by Joseph E. Kellogg, to have it set aside as to his residence,- which belonged to his wife, but was occupied by the family. The only ground for suing out the writ was the belief, unsupported by any facts averred, that defendants intended to dispose of their property with intent to defraud creditors. These petitions were addressed to the Hon. Alfred J. Mills, circuit judge, who found as a fact that there was no showing which justified suing out the attachment. While we have no authority to review his conclusions on competent testimony, we may, nevertheless, properly say that, in our opinion, he was entirely correct in his inferences, and the plaintiff’s case does not appear to be meritorious. The only question which we can determine on this proceeding in certiorari, brought to review his orders dissolving the attach [208] ment, is whether the petitioners had any standing to authorize them to apply for a dissolution. The assignees applied in their own name and on their own behalf. We have no difficulty in seeing that they are interested in having the assigned property cleared of a lien which should not have been put upon it. We are not prepared to say the circuit court may not have some power to protect them, but on this record we can express no opinion except as to the legality of the present remedy. This is not a proceeding in court, but a collateral proceeding before the judge at chambers, whose powers are identical with those of a circuit court commissioner, and who, therefore, does not, on such an application, exercise the full judicial authority of the court itself. We have in several cases decided that this is a special and peculiar statutory remedy which cannot be extended beyond the statute, and which can only avail a defendant whose interests are invaded. Chandler v. Nash 5 Mich. 409; Price v. Reed 20 Mich. 72; Macumber v. Beam 22 Mich. 395; Zook v. Blough 42 Mich. 487. We have held in these and other cases that the proceeding to dissolve an attachment (which is not only an ex-parte seizure, but one which is very poorly guarded against gross abuse) is not to be looked on with disfavor or construed with any unreasonable strictness. But the statute, although to be construed fairly in aid of its remedial objects, cannot, as we have held, authorize the judge or commissioner, neither of whom, as such, out of court, has any implied authority to intervene in any case not within the statute, which refers to none but defendants. It is certainly desirable that those who represent creditors, as these assignees do, should have some expeditious and simple way of getting rid of unjust seizures, but we cannot see how the statutory remedy can be made to reach their equities. So far as they are concerned, we are compelled to hold that the judge had no jurisdiction, as judge, out of court, to give them relief. The order granted on their behalf must be quashed, but without prejudice to any other mode of redress, if one exists. [209] As the other application was made by a defendant, and the levy was made on the property as property belonging to one or more of the defendants, there can be no doubt of his right to apply, provided he is interested at all in the property levied on. The land in question belongs to his wife, but is the family homestead. He has no technical estate in it which he can transfer to anybody else. But there can be no question, under our previous decisions, that he has a valuable and important interest which courts will protect. As head of the family he has possession jointly with his wife, and has, therefore, a right to complain of any unlawful interference. His right to join with his wife in a suit in equity to redress grievances touching the property was asserted and recognized in Henry v. Gregory 29 Mich. 67. The same principle was applied in ejectment against the homestead in Hodson v. Van Fossen 26 Mich. 68, and in a complaint against a husband for arson, in Snyder v. People 26 Mich. 106. The land is in his tenancy, while the family occupy it, as distinctly as if leased to him. And the fact that his wife owns the fee, and has also family interests which co-exist with his, does not make his possessory interest less actual or important. ~We think the application was properly made, and that the dissolution as to him must be sustained, with costs. So far as Byles and Phelps are concerned we are not disposed to grant costs for or against them, as the equities are clearly in their favor, and we should have had some hesitation in allowing a certiorari, which is not a writ of right under the circumstances. The other Justices concurred.