Barber v. Smith
| Decision Date | 10 June 1879 |
| Citation | 41 Mich. 138,1 N.W. 992 |
| Court | Michigan Supreme Court |
| Parties | JOHN C. BARBER, Plaintiff in Error. v. WILLIAM W. SMITH, Defendant in Error. |
An attachment was sued out on behalf of "Evans & Walker" by their attorney, the attorney making the affidavit describing them as a copartnership firm doing business under the firm name and style of Evans & Walker, at Detroit, Michigan, and that the Christian names of said partners were unknown to deponent. The writ followed the affidavit, describing the plaintiffs as "Evans & Walker," etc. Replevin was brought by one who claimed as mortgagee of the goods attached, to which the general issue was pleaded, with notice that defendants therein would justify under the attachment; that the property belonged to the attachment debtor; that the transfer and claims of mortgagee were void and fraudulent; and also set out the full Christian names of "Evans & Walker." On the trial the affidavit and writ were objected to, for failure to set out the names of plaintiffs, and that the affidavit was made by an agent or attorney, and did not show that affiant had means of knowing what the defendant in attachment owed. Held that the defects in the attachment were not such as to make it necessarily void.
December 10, 1877, A. Byron Smith made a mortgage on a small stock of groceries in his possession, to defendants in error professedly to secure payment of five hundred dollars in one year, and to indemnify defendant in error against liability incurred as surety, and also to secure him for advances and indorsements thereafter. It contained the usual provision authorizing actual possession to be taken by the mortgagee when he should deem himself insecure.
The mortgage was filed February 7, 1878, and four days thereafter the mortgagor gave a writing to the mortgagee, empowering him to take immediate possession and dispose of the property. On the next day, February 12th, an attachment against the mortgagor was sued out of the circuit court in favor of "Evans & Walker," by their attorney, Mr. Campbell. The affidavit made by the attorney described "Evans & Walker" as "a copartnership firm, doing business under the firm name and style of Evans & Walker, at Detroit, Michigan," and further stated "that the Christian names of said partners are unknown to deponent."
The writ following the affidavit required the sheriff to attach "sufficient to satisfy the demand of 'Evans & Walker,' copartners doing business under the firm name and style of Evans & Walker, plaintiffs." On the same day the plaintiff in error, who was the sheriff of the county, executed the writ by seizing the groceries mentioned, and three days later, namely, February 15th, the defendant in error replevied them in this action. The plaintiff in error pleaded the general issue to the declaration in replevin, and added a full notice that he would justify under the attachment, and would show that the property belonged to the attachment debtor, A. Byron Smith, and that the claims and agreements set up by defendants in error were fraudulent and void against the creditors of A. Byron Smith, including the plaintiff in attachment. The notice also stated that the full individual names of said plaintiffs were John Evans and Frederick K. Walker.
At the trial the defendant in error produced in evidence the chattel mortgage and second writing from A. Byron Smith, and gave evidence tending to prove the taking of possession on the evening of February 11, and that plaintiff in error seized the next day; that the property still remained where it had been, but notice of sale had been prepared and not posted; that the value was less than four hundred dollars; and that defendant in error, with good reason, felt insecure.
The plaintiff in error offered the affidavit and writ, with the inventory and appraisement, pursuant to the notice given. The offer was opposed, upon the ground that the affidavit and writ were bad, and the reasons assigned were that the plaintiffs' names were not set forth, and that the affidavit was made only on behalf of the firm of "Evans & Walker," and by the agent and attorney of said firm, and that the affiant did not show he had means of knowing what the defendant in attachment owed.
The point is made in the brief that defendant in error was in actual possession under the chattel mortgage, and was proceeding to sell, and that it was not competent to interfere under the attachment. No such ground was taken at the trial, and if there had been it could not have succeeded. The position is fallacious. If the launch of the attachment case was not void, and the action was susceptible of being carried on by the aid of amendments (as this point must be taken to admit), the attachment creditors were entitled to contest the whole claim of defendant in error, and it would be absurd to suppose they could be ruled out by an assumption that the mortgage was of force to enable him to build up rights on it against them.
If the attachment was void it could not be used as a basis of attack on title, and no such question as is suggested could arise.
The case depends upon the effect of the want of certainty in the description of the plaintiffs in the attachment papers.
The oath was positive concerning the fact of indebtedness by A. Byron Smith to the "said Evans & Walker in the sum of one hundred and twenty-nine dollars over and above all legal set-offs," as near as might be, and as near as the affiant could estimate the same.
There was no radical and incurable defect, apart from the denomination of the plaintiffs, and there can be no doubt that the mode of their designation was erroneous. But the question is whether the proceedings were void in consequence, or on the other hand whether the error was such as could be cured upon some terms in the same case.
The objection is made in another suit, and not in that in which the error is found. It arises collaterally, and not in a proceeding to review the error. Moreover, the defect is not shown as one remaining in a concluded case, and where there has been seasonable appeal to the power residing in the court to correct errors in pending actions. It appears as an error committed at the very beginning of the suit, and only three days before the commencement of this action in which it is stated as a ground of objection. If curable this interval of three days cannot be assumed as sufficient time. The notice with the plea of the general issue in the present case was made two months and a half later, and as stated already the full names of Evans & Walker, the...
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