Conway v. Judge of Ionia

• Citation: 46 Mich. 28,8 N.W. 588
• Court: Michigan Supreme Court
• Decision Date: 13 April 1881
• Parties: CONWAY and another v. JUDGE OF IONIA.

8 N.W. 588

46 Mich. 28

CONWAY and another v. JUDGE OF IONIA.

Supreme Court of Michigan

April 13, 1881

Failure of garnishee affidavit to conform to the amended garnishee law of 1879 held fatal. Discharge of garnishee held proper.

Mandamus.

Blanchard & Cagwin, for respondent.

CAMPBELL, J.

A mandamus is asked to rescind an order dismissing garnishee proceedings as founded on a defective affidavit. The affidavit does not conform to the amended garnishee law of 1879 inasmuch as it fails to show the nature of the contract of the principal defendants, or to identify it with the cause of action in suit. As we have repeatedly held the defect fatal we need not discuss it. But it is claimed the garnishee waived the jurisdictional defect by appearing and disclosing. He expressly denied having any property of the principal debtors, and his disclosure showed claims of creditors under an assignment, in which he had no personal interest, and in which other persons had. The motion to quash was entered before any judgment had been rendered against the principal defendants.

Without considering under what circumstances if at all a waiver will preclude the garnishee from raising such objections, we do not think it was any abuse of discretion in the circuit court to relieve the garnishee from further responsibility. There seems to have been no difficulty in the way of making a valid affidavit when the motion was noticed, and whatever may have been the case on this point, the garnishee should not be deprived of his jurisdictional defence, and be made to bear the annoyance of a litigation in which he has no interest, unless his conduct has been such as to work serious prejudice. In the present case if the principal defendants had not withdrawn their defence the judgment against them must have been still further delayed, and, as already stated, the garnishee had made no admissions whatever of liability. He could only have been held upon the trial of an issue, which was not ripe for trial before judgment in the principal case.

The mandamus must be denied with costs.

(The other justices concurred.)