Beebe v. Morrell

• Decision Date: 11 July 1889
• Citation: 42 N.W. 1119,76 Mich. 114
• Court: Michigan Supreme Court
• Parties: BEEBE v. MORRELL.

42 N.W. 1119

76 Mich. 114

BEEBE v. MORRELL.

Supreme Court of Michigan

July 11, 1889

Error to circuit court, Kalkaska county; ALDRICH, Judge.

Trover by Orrin Beebe against Myron A. Morrell. Verdict and judgment for plaintiff, and defendant brings error.

Willis B. Perkins, (Charles B. Lothrop, of counsel,) for appellant.

Wm. D. Totten and J. L. Boyd, (E. S Pratt, of counsel,) for appellee.

CHAMPLIN, J.

The defendant is the sheriff of Kalkaska county. He was sued in trover by Beebe, and justified under a writ of attachment issued out of the circuit court for the county of Kalkaska and to him directed on the 8th day of September, 1888, in a certain suit wherein Charles T. Fletcher, Charles C. Jenks, George G. Bogue, and James A. Whiting were plaintiffs, and Waldron R. Noteware and George H. Beebe were defendants. On the first trial the plaintiff gave evidence tending to show title in the property, and the damages and the seizure and possession of the goods by defendant. The sheriff identified the writ of attachment as the one under which he seized and inventoried the goods in question. His counsel then offered the writ of attachment, and the files, records, and calendar entries in the same, in evidence. No judgment had been rendered in the cause in which the attachment was issued. It appeared from the original files, as produced, that the affidavit in attachment consisted of one sheet at the time of the production, and was annexed to the writ of attachment. The return to the writ was also attached thereto, all constituting one package or file, which package was indorsed with the title of the cause and the date of filing, October 2, 1888. The affidavit was the first paper, and had no separate indorsement, title of the cause, or filing; to the admission of which writ of attachment in evidence, and the files and records, the plaintiff objected, on the following grounds: (1) That the affidavit was not entitled in the case. (2) It did not recite the commencement of a suit by declaration in which said attachment was issued, nor show that at the time said affidavit was made the declaration had been served upon said defendants in said cause, or either of them. (3) The records in said cause did not show that said affidavit was ever filed in said cause. (4) At the time said attachment was issued there was nothing on file in the office of the clerk of said court to show that the declaration in said cause had ever been served personally on either of the defendants in said cause. (5) There is nothing in the attachment proceedings to show that the copy of the declaration was served upon either of the defendants before the said writ of attachment issued, and that the attachment does not recite such service.

Defendant then showed that no judgment had been entered in said cause in which said writ of attachment was issued, and then moved the court, the attorneys for the plaintiffs in said attachment suit being the same as the attorneys for the defendant in this cause and then present in court, that said affidavit in attachment might be amended by properly entitling the same in said cause, and that the records in said attachment suit might be amended; and offered to show by oral testimony that said affidavit was actually filed therein on the day it was made, in the manner following: That said affidavit was duly taken to the clerk of the court on the day it was made, and that at that time the attachment then issued was attached to the back of said affidavit, and to the back of these papers was attached a cover, with the title of the cause indorsed thereon, and at the request of the plaintiffs' attorney the same was then marked by the clerk of said court "Filed," the date of filing, and was signed by said clerk, and was taken away from said clerk's office, together with the affidavit, and placed in the hands of the sheriff; and that, upon the return of the sheriff being made and attached thereto, the said cover upon which was the entitling and memorandum of filing was lost; that diligent search had been made for the same, and the defendant had been unable to find it; also that the clerk of said court had no recollection of any circumstances connected with the filing of said affidavit, or whether said affidavit was in fact filed or not. The proposed amendment and the proposed proof were duly objected to. The court sustained the objections, and further held that for the defects specified in the objections to the introduction of the writ, and files and records, the same were void and of no effect as against the rights of the plaintiff in said cause, and refused to admit said writ of attachment, files, records, and entries in evidence. He also refused to permit the defendant to show that the title of the plaintiff to the goods was fraudulent and void as to the creditors of George H. Beebe and Waldron R. Noteware. The files and records offered and excluded are returned, and appear in the bill of exceptions, from which it appears that the suit was commenced by Charles T. Fletcher, Charles C. Jenks, George G. Bogue, and James Whiting against Waldron R. Noteware and George H. Beebe, on the 3d day of September, 1888, by filing declaration and entering a rule to plead. The declaration, with notice of the rule to plead indorsed thereon, was served upon the defendants personally on the 3d day of September aforesaid, so that the suit was fully commenced upon that day according to the provisions of the statute.

The sheriff did not file his return of service until the 17th of September, 1888. In the mean time, and on the 8th day of September, 1888, Charles C. Jenks, one of the members of the firm of Fletcher, Jenks & Co., who were the plaintiffs in the suit commenced by declaration, made an affidavit, of which the following is a copy: "State of Michigan, County of Kalkaska-ss.: Charles C. Jenks, being duly sworn, deposes and says that he is a member of the firm of Fletcher, Jenks & Co., composed of Charles T. Fletcher, Charles C. Jenks, George G. Bogue, and James A. Whiting, doing business at Detroit, Mich., and makes this affidavit in behalf of said firm, having...