Stringer v. Dean

Morse, J. This suit was commenced by writ of attachment in the circuit court for the county of Tuscola. No personal service of the writ was made upon the defendant, and the plaintiff proceeded to judgment before the defendant learned that suit had been instituted. Judgment was rendered March 16, 1885. May 5, 1885, the defendant entered a special motion to set aside said judgment and quash the writ for alleged defects in the affidavit for the writ, and filed an affidavit in support of the motion, setting forth that at the date of the issuing of the writ the plaintiff and himself were both residents of Wayne count}' and that he was possessed of personal property in Wayne county subject to levy by attachment. His objections to the affidavit were— 1. That the plaintiff did not make the affidavit, nor was it stated therein that the person who made it did so on behal f of the plaintiff. 2. That the affidavit did not show that either of the parties was a'resident of Tuscola county, and therefore should have set forth either that the defendant was a non-resident of the State, or that he had no property subject to attachment within the county where he resided, in order to give the court jurisdiction. Upon the day noticed for the hearing of this motion, by [200] consent of parties in open court, an order was entered giving the defendant until the twenty-second day of May, 1885, to file a new affidavit in support of his motion, and the plaintiff twenty days from the fifteenth of May, 1885, in which to file counter-affidavits, or “to frame an issue under the statute,” at his election. Defendant filed a new affidavit on the twenty-second of May. On the eleventh day of September, 1885, the plaintiff filed with the clerk of the court an election in writing to frame an issue according to said order, and on the same day served a notice of the same upon the attorney for the defendant. Afterwards, and on the fourteenth day of September, 1885, the attorney for the defendant noticed his special motion for hearing upon the attorney for the plaintiff, the date for said hearing being September 18, 1885. The motion was heard, the judgment vacated, and the writ quashed upon that day. The plaintiff brings the action of the court before us for review upon exceptions. It appears that, upon the same day the notice of hearing of the special motion was served upon him, the plaintiff’s counsel entered a motion that hé be granted leave to frame an issue to try the question whether the defendant was possessed of property situate in Wayne county subject to levy by attachment at the time of the issuing of the writ; that he had not framed an issue before, because he could find no provision in the statute under which to frame it, the order heretofore noted having specified that the issue should be framed under the statute. This motion was heard at the same time as defendant’s motion, and denied. The plaintiff objects to the action of the court upon the ground that the notice of the special motion to quash the writ, under the circumstances, should have been the same as rfotiee of trial, and served upon him fourteen days before hearing. But, if it were proper to hear this motion without fram [201] mg' an issue as desired by the plaintiff, we think sufficient time elapsed between the service of the notice and the hearing- We are of the opinion, however, that unless some defect Appeared upon the face of the proceedings showing a want of jurisdiction to issue the writ or to enter judgment, the plaintiff was plainly entitled to frame an issue, and contest the questions raised, outside of the record. Haywood v. Johnson, 41 Mich. 605. And we do not think the plaintiff waived the right because of not proceeding sooner to take his election under the order. The affidavit upon which the writ issued in this case was made and verified by T. W. Atwood, who deposed therein •that he was the “attorney for the plaintiff named in the annexed writ of attachment.” It is claimed that he should have sworn that he made the affidavit in behalf of the plaintiff, and named him in the affidavit. We do not think so. The statute requires that the affidavit should be made by “ the plaintiff, or some person in his behalf.” If the person executing the affidavit deposes that he is the agent or attorney of the plaintiff, it sufficiently •appears, by legal inference, that it is made in his behalf: How. Stat. § 7987; Nicolls v. Lawrence, 30 Mich. 395-99. As the affidavit may also be made at the same time the writ is issued, and must always be annexed before the writ passes from the clerk’s hands, and the affidavit in this cause bears the same date as the writ, there is a sufficient identification of the plaintiff without naming him in the affidavit, although such naming is no doubt the better practice. But the omission to do so does not invalidate the writ, or void the issue of it:1 Hubbardston Lumber Co. v. Covert, 35 Mich. 262-3. [202] The affidavit filed fails to state the residence of either the plaintiff or defendant. The defendant’s counsel contends that the affidavit should upon its face show, under the statute, either that one of the parties resided in Tuscola county, or that the defendant had no property subject to attachment in the county where he resided, or was a nonresident of the State ; that one of these facts was necessary to confer jurisdiction to issue the writ. How. Stat. §7986. Under the statute above cited, the plaintiff can only proceed in attachment in case one of the parties resides in the county, or the defendant has no property in the county where he resides and property in the county where suit is brought, or is a non-resident of the State. We do not think it necessary to set forth in the affidavit at the commencement of the attachment proceedings anything more or further than is prescribed by the next section (How. Stat. § 7987), which provides what the affidavit shall contain. The affidavit filed in this cause contained all the material allegations required by the statute. It is entirely proper, however, for the defendant to appear, as he did in this case, and move to set aside the judgment and quash the writ upon the ground of want of jurisdiction, by filing affidavits showing that the plaintiff, under section 7986, had no right to proceed in attachment (Haywood v. Johnson, 41 Mich. 605), and can base his motion upon affidavits so filed. But if the plaintiff desires to contest the facts relied upon in the affidavits to quash the proceedings, he has an undoubted right to the framing of an issue, unless he waives it, and to try the question before a jury if he chooses to do so.1 [203] The order of the court below in this case will be reversed and vacated, and the plaintiff must be given leave to frame an issue upon the matters of fact set forth in defendant’s-affidavit, and allowed a trial of such issue if be desires, Costs of this Court will be awarded to the plaintiff. The other Justices concurred. Footnotes [1] The rule is the reverse in justice’s court, where the statute requires the filing of the affidavit for attachment with the justice, but not its annexation to the writ. In the case of Burnside v. Davis, decided February 10,1887 (Western Rep. vol. 8, p. 133), the party making the affidavit deposed that he was “ one of the plaintiffs named in the annexed writ of attachment,” but failed to further identify the plaintiffs, and the affidavit was not Attached to the writ. Held,, that the affidavit was void for failure to identify the plaintiffs. [1] How. Stat. § 7761. — “Whenever a suggestion shall be made upon the-record, or in any stage of the proceedings in any cause, which the adverse • party shall have a right to controvert, a copy of such suggestion shall be served upon the adverse party or his attorney, in the same manner as-other pleadings, and such party may plead thereto, according to the practice of the court, in the same manner, and within the same time, as to a. declaration.” How. Stat. § 7762. — “If an issue of fact be joined upon any such suggestion, the same shall be tried, and judgment rendered thereon, as on> other issues.” How. Stat. § 7763. — “ The party malting such suggestion may be non203 suited, and may have judgment of nonpros., or discontinuance entered against him, for the same causes, and in the same cases as in suits at law.” How. Stat. § 7766. — ‘ ‘ When there shall be a motion or other proceeding in any court of record, in which it shall be necessary for either party to have the deposition of any witness who shall have refused voluntarily to make his deposition, the court may direct .a commission to he issued to one or more persons, inhabitants of the county in which such witness resides, to take his testimony.” How. Stat. § 7767. — “ Such witness may be subpoenaed to attend and testify before such commissioners, in the same manner as before referees,, and with the like effect; and obedience to such subpoena shall he enforced in the same manner.” See How. Stat. § 7379, as to manner of compelling attendance before referees, etc.