Berles v. Adsit

• Decision Date: 20 November 1894
• Citation: 60 N.W. 967,102 Mich. 495
• Court: Michigan Supreme Court
• Parties: BERLES v. ADSIT, Circuit Judge.

60 N.W. 967

102 Mich. 495

BERLES v. ADSIT, Circuit Judge.

Supreme Court of Michigan

November 20, 1894

Petition for writ of mandamus by Theresa Berles against Allen C Adsit, Kent circuit judge. Granted.

Fletcher & Wanty, for relator.

McGarry McKnight & Judkins, for respondent.

MONTGOMERY J.

An action was commenced in the circuit court for the county of Kent by the Peninsular Stove Company, as plaintiff, against Joseph Berles. Garnishee proceedings were also instituted against Theresa Berles, the relator, who is the wife of Joseph Berles. Judgment was rendered against the principal defendant. The affidavit for a writ of garnishment set forth that the garnishee defendant had property, money goods, chattels, and effects in her hands and under her control, belonging to the principal defendant, Joseph Berles which she holds by a conveyance or title that is void as to creditors of Joseph Berles; the proceeding being based upon section 8091, 3 How. St. Relator answered, denying liability. She was thereupon cited to appear and submit to an examination before respondent. She appeared, and, it appearing that she was the wife of the principal defendant, the attorney of her husband objected to her being examined in regard to the transfer of the property in question, on the ground that he, the husband, was a party to the action, and that her testimony would be against him, and therefore incompetent. The objection was overruled, and, the relator declining to answer the questions, plaintiff entered her default for refusing to submit to an examination. The relator moved to set aside the default on the ground that she could not be compelled to submit to such examination. This motion was overruled, and the present application is made for an order requiring the circuit judge to set aside the default.

The question involved is whether, in a garnishee proceeding, the wife of the principal defendant may be examined as to transfers of property made to her by the husband. Section 7546, 3 How. St., provides that "a husband shall not be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent," except in certain cases not necessary to be stated here. Was the wife competent to testify in this proceeding as a witness for or against her husband? The proceeding is analogous to a judgment creditor's bill in aid of execution. In De Farges v. Ryland (Va.) ...