Sword v. Lane

Sherwood, C. J. Eelators apply for a mandamus requiring the respondent to dismiss a writ of attachment and all proceedings taken thereunder, on the ground that the •affidavit upon which the writ was based is insufficient. The plaintiffs in the attachment were four persons, composing the firm of H. Brewer & Go., and residents of the [285] county of Lenawee. The defendants in the attachment-are the relators in this case. The affidavit for the writ was made by Herbert E. Stout, one of the members of said firm, and reads as follows: “ Herbert E. Stout, of said county, being duly sworn, deposes and says that he is a member of the firm of H. Brewer & Co.; that said firm is composed of Albert Brewer, Hudson W. Conklin, himself, Herbert E. Stout, and the-said Hendrick Heeson; and that Porter L. Sword and Charles D. Sword are justly indebted to the said Albert-Brewer, Hudson W. Conklin, Herbert E. Stout, and the said Hendrick Heeson, composing the firm aforesaid, in the sum of seven thousand ($7,000) dollars as near as may be, over and above all legal set-offs (and that the same is now due to the said xhlbert Brewer, Hudson W. Conklin, Herbert E. Stout, and Hendrick Heeson from the said Porter L. Sword upon expressed contract); and deponent further-says that he knows that the said Porter L. Sword and Charles D. Sword are not residents of the State, and neither of them have resided in this State for three months immediately preceding the time of making this affidavit,, to wit, the seventeenth day of December; and that the said Porter L. Sword and Charles D. Sword have property in this Lenawee county subject to attachment; and further deponent saith not. “ Subscribed and sworn to before me this 17th day of December, 1887. John E. Bird, ” Notary Public in and for Lenawee county.”' The writ that was issued upon the filing of this affidavit, was served by the deputy-sheriff by seizing the personal property belonging to defendants situate then in the county. No personal service was made of the writ on either of the defendants. Publication was had under the statute, and at the proper time plaintiffs filed their declaration, and are now proceeding to judgment in said cause. The property taken was duly appraised at the value of $300. On April 19, 1888, defendants appeared specially by their attorneys, and moved the court to set aside the286 writ and all the proceedings in the case, for the reason that the court had no jurisdiction to issue the writ; that •no affidavit such as is required by law was made or annexed thereto, or presented to the clerk of the court before or at the time of its issue. This motion was heard and denied in the circuit court. The same grounds are relied upon here for the order asked. It is claimed by counsel that the affidavit does not allege that there was any debt due against Charles D. Sword upon express or implied contract; that it is at least doubtful whether it contains such an allegation, and it is therefore within the case of Wilson v. Arnold, 5 Mich. 103. The counsel further claim that the fact that the allegation in this regard is expressly limited to Porter L. Sword fairly imports that it was not due as against •Charles Sword. I have not been able to take the same view of the question presented as do the relators' counsel. The language of the affidavit “that Porter L. Sword and ■Charles.D. Sword are justly indebted to the said" plaintiffs named, imports a joint indebtedness, and until the ■contrary appears the common acceptation of the meaning of the terms should be applied. See 1 Pars. Cont. 11, 12, and cases cited; York v. Peck, 14 Barb. 644; Miller v. Circuit Judge, 41 Mich. 426; 1 Wait's Act. & Def. 76; Geiges v. Greiner, 68 Mich. 153 (36 N. W. Rep. 48). Any other construction of the language used might be ¡accompanied with great mischief. If this construction is placed upon the language of the affidavit, that the indebtedness is joint, then it necessarily follows that when such indebtedness became due against one it must have been due against the other. This disposes of both grounds of the motion in favor of respondent, and the writ must be denied. Champlin, ( Campbell, and Lons, JJ., concurred.