Adams v. Kellogg
| Decision Date | 14 October 1886 |
| Citation | 29 N.W. 679,63 Mich. 105 |
| Court | Michigan Supreme Court |
| Parties | ADAMS v. KELLOGG. |
Error to circuit court, Calhoun county.
Trover.
Miner & Stace and E.L. Koon, for appellant, Adams.
Great latitude is allowed in cross-examination, in cases of fraud, but matter entirely irrelevant cannot be brought out. North v. Metz, 24 N.W. 759.
Attachment proceedings before a justice of the peace are special, and must be strictly carried out. Fairbanks v. Bennett, 52 Mich. 61; S.C. 17 N.W. 696; Van Norman v. Circuit Judge, 45 Mich. 204; S.C. 7 N.W. 796; Mathews v. Densmore, 43 Mich. 461; S.C. 5 N.W. 669; Roelofson v. Hatch, 3 Mich. 278; Buckly v. Lowry, 2 Mich. 420.
An affidavit is necessary to give jurisdiction. Mathews v. Densmore, 43 Mich. 461; S.C. 5 N.W. 669; Wells v. Parker, 26 Mich. 102; Hale v. Chandler, 3 Mich. 531; Greenvault v. Farmers' & M. Bank, 2 Doug. (Mich.) 498.
Under section 6831, How.Ann.St., if the affidavit is made by one not the actual party in interest, it must appear that it is made in his behalf. Wiley v. Aultman, 53 Wis. 560; S.C. 11 N.W. 32; Miller v. Chicago, M. & St. P. Ry. Co., 58 Wis. 310; S.C. 17 N.W. 130; Wallace v. Byrne, 17 La.Ann. 8; Wetmore v. Daffin, 5 La.Ann. 496; Willis v. Lyman, 22 Tex. 268; Anderson v. Sutton, 2 Duv. 480; Manley v. Headley, 10 Kan. 88.
The affidavit cannot, where it fails to state jurisdictional facts, be amended after suit against the sheriff. Pool v. Webster, 3 Metc. (Ky.) 278; Fairbanks v. Bennett, 52 Mich. 61; S.C. 17 N.W. 696.
The giving of a bond is also a prerequisite. How.Ann.St. � 6838; Homan v. Brinckerhoff, 1 Denio, 184.
It must be executed by the plaintiff, or some one authorized by him. Jones v. Anderson, 7 Leigh, 308; Mantz v. Hendley, 2 Hen. & M. (Va.) 308; Myers v. Lewis, 1 McMul. 54; Ford v. Hurd, 4 Smedes & M. 683.
A bond which, from the face, was to have been signed by the principal, but was not, is a nullity. Hall v. Parker, 37 Mich. 590; Johnston v. Kimball, 39 Mich. 187; Wood v. Washburn, 2 Pick. 24; Bean v. Parker, 17 Mass. 591; Adams v. Bean, 12 Mass. 139; Cutter v. Whittemore, 10 Mass. 442; Lovett v. Adams, 3 Wend. 380.
The statements of a person in possession of attached property are not evidence, as against a claimant. Ellis v. Howard, 17 Vt. 330; Holbrook v. Holbrook, 113 Mass. 76; Horrigan v. Wright, 4 Allen, 514; Bridge v. Eggleston, 14 Mass. 250; Aldrich v. Earl, 13 Gray, 578; American Nat. Bank v. Bushey, 45 Mich. 135; S.C. 7 N.W. 725; Linn v. Gilman, 46 Mich. 628; S.C. 10 N.W. 46; Turner v. Belden, 9 Mo. 797; Dennison v. Benner, 41 Me. 332; Kittles v. Kittles, 4 Rich. 422. See, also, Fairlie v. Hastings, 10 Ves. 123; Byers v. Fowler, 14 Ark. 86; Peck v. Richey, 66 Mo. 114; Hannay v. Stewart, 6 Watts, 487; Whart.Ag. � 158; Visher v. Webster, 13 Cal. 58; James v. Kerby, 29 Ga. 684; Page v. O'Neal, 12 Ga. 483; Jones v. Morse, 36 Cal. 205; Mobley v. Barnes, 26 Ala. 718; Weaver v. Yeatmans, 15 Ala. 539; Clinton v. Estes, 20 Ark. 216; Vaughan's Adm'r v. Winckler's Adm'r. 4 Munf. 136.
Levi B. Tompkins and John C. Patterson, for appellee, Kellogg.
The statute does not abolish the common-law plea. 2 How.St.1882, � 7362.
Objections to the form of pleadings should be raised by demurrer, and not by objections to evidence on the trial. Van Middlesworth v. Van Middlesworth, 32 Mich. 183; Jennison v. Haire, 29 Mich. 207, 210.
The agent making the affidavit need not state that he makes it for or on behalf of the plaintiff. Nicolls v. Lawrence, 30 Mich. 395-397; Wetherwax v. Paine, 2 Mich. 555; Stringer v. Dean, 27 N.W. 886.
A defective attachment bond does not deprive the court of jurisdiction of the case. Hills v. Moore, 40 Mich. 210; Bryant v. Hendee, Id. 543; Kidd v. Dougherty, 26 N.W. 510; McClintock v. Laing, 19 Mich. 305; Torrent v. Muskegon Booming Co., 21 Mich. 159.
The statements and admissions of the Hallocks are part of the res gestae. Frankel v. Coots, 41 Mich. 75-77; S.C. 1 N.W. 940; Baldwin v. Buckland, 11 Mich. 389; Flanigan v. Lampman, 12 Mich. 58; 1 Greenl.Ev. �� 189-191; Jackson v. Bard, 4 Johns. 230; Adams v. Davidson, 10 N.Y. 309; Cuyler v. McCartney, 33 Barb. 165; Smith v. Mitchell, 12 Mich. 180.
This is an action of trover, brought to recover the value of certain machinery and tools, the property of the plaintiff, taken by the defendant, as sheriff of Calhoun county, under a writ of attachment from justice's court in favor of one Theodore Creque and against George N. Hallock. The plaintiff's claim is that in April, 1883, he purchased a saw-mill, with its machinery and tools, including those in question, at Livonia, in the state of New York, for a full and valuable consideration, from one Hubert B. Hallock, who is a son of George N. Hallock; that in August of the same year he employed George, as his agent, to remove the machinery and tools from Livonia to Homer, in this state, and sell them for him; that George did this, and the same time brought with him a resawing-machine of his own, and, as soon as he got to Homer with the property, commenced his efforts to sell the same, and had actually sold his resawing-machine, and a part of the other machinery, and was endeavoring to sell the remainder, (it being the machinery in question,) when the same was seized by the defendant, while it was thus in custody of George for the purpose of sale. The defendant claimed that the machinery was at the time of the seizure the property of George N. Hallock, and that plaintiff's title was fraudulent as to his creditors; that the title was placed in Hubert for the purpose of defrauding the creditors of George. Upon these two theories the cause was tried by jury, before Judge HOOKER, at the Calhoun circuit, and the defendant had judgment.
The case is now before us on error. It was objected at the trial to showing the pecuniary responsibility of G.N. Hallock, and, upon cross-examination of plaintiff's witness, the objection was overruled. No error was committed in this. The embarrassed circumstances of George might or might not be a material circumstance in the case, when he was charged with fraud.
We see no difficulty in the pleadings in the case, on the part of the defendant. They contain the substance of the general issue, and a good notice, and that is sufficient.
The objection that the person purporting to be the agent of plaintiff, in making the affidavit for the writ of attachment, does not make sufficient account of that fact, is untenable. She says that "she is the agent of Theodore D. Creque," and this is sufficient. Nicolls v. Lawrence, 30 Mich. 395; Wetherwax v. Paine, 2 Mich. 555; Stringer v. Dean, 27 N.W. 886.
There is nothing jurisdictional in the question raised upon the bond. If the bond was defective, a new one could have been filed, and this objection must fail. Kidd v. Dougherty, 26 N.W. 510; Hills v. Moore, 40 Mich. 210; Bryant v. Hendee, Id. 543; McClintock v. Laing, 19 Mich. 305; Torrent v. Muskegon Booming Co., 21 Mich. 159.
The testimony of witness Willes, as to what he had heard George N. Hallock say, and what he knew him to do in regard to the property at or about the time the sheriff levied upon it, we think was competent, and relevant to the issue, and the court committed no error in receiving it, nor in refusing to strike it out.
The question was raised, and strongly contested, that Hubert Hallock never owned the property in question. This, of course, involved transactions between those parties in the state of New York, and how the property was treated then by each of them. It also involved an investigation of all those facts and circumstances which would tend to show whether or not George N. Hallock was acting as owner or as agent of the property and this of course involved all the circumstances raising probabilities, and the testimony disclosing them was properly admitted. This disposes of all the assignments of error relating to that subject. Cuyler v. McCartney, 33 Barb. 165; Adams v. Davidson, 10 N.Y. 309; Frankel v. Coots, 41 Mich. 75; S.C. 1 N.W. 940; Baldwin v. Buckland, 11 Mich. 389; Flanigan v. Lampman, 12 Mich. 58.
On a review of all the assignments of error based upon the rulings of the circuit judge in receiving and rejecting testimony, we have found none needing further consideration.
The charge of the court is full and carefully considered. Substantially, the most of the plaintiff's requests were given, and none were rejected necessary to aid the jury, or that the circumstances of the case called for, and the judgment must be affirmed.
(The other justices concurred.)
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