Timm v. Cass Circuit Judge

Bird, J. A writ of mandamus is asked to compel respondent to set aside a writ of capias ad respondendum on which relator was arrested, because of the insufficiency of the affidavit upon which it was issued. The affidavit was made by William R. Clendenin of Cass county, and filed in the circuit court for that county. Objection is made to the affidavit because the affiant had no personal knowledge of the facts sworn to; that, while the affidavit appears to contain positive statements of fact, “when carefully examined with reference to its objects and purpose, it is so in form only.”. [510] Many of the statements in the affidavit are within counsel’s objection, but there are some positive statements of facts, namely: That relator, on the 11th day of January, 1915, hired a valuable horse of affiant at the village of Jones, for a consideration to drive to the home of Russell Glass and back to the village; that the horse was delivered to relator by affiant, and that he drove it away, and did not return it in accordance with his agreement, and that he did not return it when requested to do so. If we treat as surplusage statements which affiant could not have known of his own personal knowledge, and those which he may or may not have had personal knowledge of, we have left statements, which, if sworn to by affiant.in an action of trover, would make a prima facie case. But it is argued that no conversion is shown; that if the horse were dead, or it was impossible to redeliver it, relator would not be guilty of conversion. This might or might not be true. Relator might be able to show a state of facts, which would be convincing, that he had not converted the horse, but this showing, whatever it might be, would be by way of defense. While a demand for and a refusal to deliver are not ipso facto a conversion (Felcher v. McMillan, 103 Mich. 494 [61 N. W. 791]), they are evidence of a conversion, and usually make a prima facie case. 38 Cyc. p. 2031. If a prima facie case of trover is made out by the affidavit, a writ of capias ad respondendum will lie. 3 Comp. Laws, § 9998 (3 Comp. Laws 1915, § 12415). 2. The jurisdiction of the proceedings is questioned on the ground that the judge was not present in the county of Cass when he fixed and indorsed the bail on the writ, but was in Van Burén county, which county is also a part of his judicial circuit. 3 Comp. Laws, § 9998 (3 Comp. Laws 1915, § 12415), authorizes the "judge of the court from which the writ issues” to fix [511] the bail and indorse the same on the writ. The judge who indorsed the writ was the judge of the court from which the writ issued. The mere fact that he was out of the county of Ca^s, but elsewhere in his judicial district, is of no importance. There is nothing in the statute which makes it incumbent upon him to be present within the jurisdiction of the particular court when he acts in such matters. 3. A further objection is made that the affidavit for the writ was sworn to before the wife of the attorney for plaintiff. The objection in short is that the statute prohibits attorneys from acting as. notaries in causes in which they are professionally engaged (1 Comp. Laws, § 2640 [3 Comp. Laws 1915, § 12082]), and that, by analogy the wives should be prohibited from so doing by reason of the confidential relation existing between them. We do not think there is any merit in this point. The statute has conferred the authority on her to act as notary public, and unless that right is restricted, as in case of attorneys acting as such in their own cases, we see no legal reason why she may not act in such cases, even though she be the wife of one of the attorneys interested in the case. The question is an appropriate one for the consideration of the legislature. We think the objections to the writ are not well taken. The writ will be denied, with costs to the respondent. Stone, C. J., and Kuhn, Ostrander, Moore, Steere, Brooke, and Person, JJ., concurred.