Allen v. Hazen

• Decision Date: 07 November 1872
• Citation: 26 Mich. 142
• Court: Michigan Supreme Court
• Parties: Wright C. Allen v. Isaac D. Hazen

26 Mich. 142

Wright C. Allen v. Isaac D. Hazen

Supreme Court of Michigan

November 7, 1872

Heard October 26, 1872

Case made from Kent circuit.

Judgment reversed, with costs, and a new trial ordered.

Wood & Allen, for plaintiff.

John T Holmes, for defendant.

OPINION

Cooley J.:

The defendant is proceeded against as the debtor of Gilbert C. Hubbard, against whom the plaintiff has obtained judgment. It is objected that this judgment is ineffectual, because, first, the order of default purports to be based on a return of service made by the under-sheriff in his own name; and second, an affidavit had been placed on file showing that an error occurred in the copy of declaration served, consisting in the omission of the name of the county in the entitling.

There is nothing in either of these objections. The recital in the order for default was unimportant, and the return appears in fact to have been made in proper form. It would not, however, have been bad if made as indicated in the recital: Calender v. Olcott, 1 Mich. 344. The error in the copy of the declaration could mislead no one, and Hubbard does not appear to make complaint of it. We are, therefore, under no necessity of considering whether these objections, if of any force, could avail in this proceeding.

The important questions in the case arise upon the answer of the defendant as garnishee. In that he states that he conveyed to Hubbard, on the fifteenth day of December, 1863, "by warranty deed," a certain piece of land described, for a consideration mentioned, which land was afterwards claimed by one Chase, who brought suit therefor in the United States circuit court. To understand how the questions arise, it is necessary to state that a statutory issue was made up, and that on the trial thereof, there was other evidence showing that after Chase brought suit, Hubbard notified defendant thereof, and told him he must defend; that defendant requested Hubbard to make defense, which he did; that judgment was recovered against him in July, 1865, and he paid costs to the amount of eighty dollars; that Hubbard then inquired of defendant whether he should surrender possession voluntarily, or wait to be put out, and defendant, expressing some fears that his rights would be injuriously affected if he left without the compulsion of a writ of possession, referred Hubbard to defendant's lawyer for advice; that receiving advice that rights would not be affected by leaving peacefully, Hubbard did so, but afterwards took a new trial in the ejectment suit, which resulted in a second judgment against him; whereby it is claimed the liability of defendant to Hubbard for the amount of the consideration money, admitted to have been paid to him for the land, and also for the costs paid, became fixed. And it was upon this liability that it was sought to charge defendant in this proceeding.

On the trial, the garnishee's answer was offered in evidence, but objected to and rejected on the ground that, by means thereof it was sought by parol to prove the contents of the deed which was not produced.

We think the court misapprehended the nature and purpose of the garnishee's disclosure, when rejecting it as evidence. The disclosure does...