Wright v. Wayne Circuit Judge

Moore, J. The relator was arrested upon a writ of capias ad respondendum. He moved the respondent-to quash the writ. His motion was overruled. This is a proceeding to have the order overruling his motion vacated. Two questions are involved: First. Was the áffidavit insufficient? Second. Was the writ of capias void as being contrary to the terms of the statute ? [500] The relator contends the affidavit does not show the facts stated therein were within the personal knowledge of the affiant, and for that reason is fatally defective; citing Proctor v. Prout, 17 Mich. 473; Brown v. Kelley, 20 Mich. 33; Badgers. Reade, 39 Mich. 774; Marble v. Curran, 63 Mich. 288; Graham v. Cass Circuit Judge, 108 Mich. 425; Shaw v. Ashford, 110 Mich.. 534. These cases undoubtedly establish the doctrine that the affiant must state he has personal knowledge of the facts stated in the affidavit, or that fact must be made to appear by what is stated in the affidavit. The language used in the affidavit is in part as follows: “On the 16th day of July, 1898, * * * said Oliver A. Wright then and there said of and concerning this deponent, * * * ‘You (meaning this deponent) stole my wheel;’ ‘that woman (meaning this deponent) stole my wheel, and I want her locked up,’ — thereby meaning to insinuate * * * that this deponent had been guilty of the crime of larceny; * * * that said Oliver A. Wright * * * charged this deponent * * * with the larceny of said bicycle, the property of Oliver A. Wright, in manner and form aforesaid, saying to a certain police officer of the city of Detroit there present, ‘That woman (meaning this deponent) stole my wheel, and I want her locked up; ’ and that thereupon the said Oliver A. Wright then and there falsely and maliciously caused and procured this deponent to be arrested and taken into custody by the said police officer there present upon the aforesaid charge,” etc. Giving this language its ordinary meaning, the conclusion is irresistible that some of these statements were made to affiant personally, and that the affiant knew of her own personal knowledge the facts stated in the affidavit. The ' affidavit was not defective. Pease v. Pendell, 57 Mich. 315; Hatch v. Saunders, 66 Mich. 181; Pamper v. Roberts, 83 Mich. 547; Paulus v. Grobben, 104 Mich. 42. It is claimed the writ of capias is void, because it commands the defendant, if he desires to defend, to have his appearance entered within 15 days after service of the [501] writ, while the statute (2 How. Stat. § 7306) gives the defendant 20 days after the return day; citing Reid, Murdock & Co. v. Benzie Circuit Judge, 115 Mich. 418. This case holds that proceedings by capias are governed by the statute, and not by the rules of court. Section 7295, 3 How. Stat., provides what the form of the writ shall be, and contemplates it may be altered by rule of court. Cir. Ct. Rule No. 1 prescribes the form of the writ. The form there prescribed was followed in this case. The right to appear in the case is controlled by the provisions of the statute, and nothing was done in the case which has deprived the relator of. that right. We do •not think it follows that, the writ is void because the time stated therein for entering an appearance is shorter than the time fixed by statute. The writ of mandamus is denied. The other Justices concurred.