Drake v. Lake Shore & M. S. Ry. Co.

• Citation: 37 N.W. 70,69 Mich. 168
• Parties: DRAKE v. LAKE SHORE & M. S. RY. CO. ET AL.
• Decision Date: 02 March 1888
• Court: Supreme Court of Michigan

37 N.W. 70

69 Mich. 168

DRAKE v. LAKE SHORE & M. S. RY. CO. ET AL.

Supreme Court of Michigan

March 2, 1888

Appeal from circuit court, St. Joseph county.

MORSE, J.

The plaintiff commenced proceedings in justice's court by garnishee in attachment for the sum of $7.66, claimed to be due him from one S. J. Coder, an employe of the defendant railroad company. No personal service of the attachment writ was had upon the principal defendant, and no goods or chattels were seized by virtue of it. There was no appearance by or for the defendant in the principal suit. The attachment was procured upon affidavit that the principal defendant was not a resident of this state. A copy of the attachment was left with the agent of the railroad company at Constantine Mich., on the 30th day of september, 1886, the return-day being October 6, 1886; and the officer returned that he could not find the principal defendant in the county of St. Joseph where the action was commenced. The garnishee summons was served September 27, 1886. On the return-day the plaintiff appeared; the defendant did not appear. The cause was thereupon adjourned to November 13, 1886. On the last-named day defendant did not appear. Plaintiff introduced the disclosure of the railroad company to show jurisdiction.

Witnesses were sworn, and judgment rendered against the principal defendant for $7.16 damages, and $7.39 costs of suit. December 9, 1866, a second summons was issued against the garnishee defendant to show cause why judgment should not be rendered against it, returnable December 17, 1886. On the return-day of this second summons plaintiff declared against the railroad company. The disclosure of the company made by J. M. Davis, its agent at Constantine, under oath, on the 30th day of October, 1886, simply showed that at the date of the service of the first summons the company was indebted to S. J. Coder, the principal defendant, in the sum of $109.20. Before pleading, the railroad company asked the privilege of making further answer, explanatory of and supplemental to the disclosure already made. The record does not disclose whether such request was granted. The defendant then pleaded the general issue, with notice of the matters offered as explanatory of and supplemental to the disclosure in defense of the action. The main averments of this notice will appear when the findings of the circuit judge are noticed. Upon the trial in justice's court, judgment was rendered against the garnishee defendant for the sum of $14.55 damages, and $5.28 costs of suit. The cause was appealed to the circuit; in which court the same was tried without a jury, and judgment entered upon findings of fact and conclusions of law in favor of the defendant. The plaintiff brings error. In the circuit court the garnishee defendant, against the objection of the plaintiff, was permitted to make further answer. The circuit judge found the following facts: (1) That there was no personal service of the attachment upon the principal defendant, and no goods seized by virtue of the writ, and no appearance by such defendant. (2) That such defendant was from the beginning to the end of the proceedings a resident of the state of Indiana; that he was employed by the garnishee defendant in that state, and his services for which the garnishee was indebted were rendered in Indiana. (3) That the contract for such services was made in Indiana, and the wages of said principal defendant were due and payable in that state; and that the amount owing to him from the garnishee was for one month's labor, under a contract made and payable in Indiana; and that at the time of the service of the garnishee process he was still under employment of the garnishee in that state, under such contract, and was a citizen of Indiana. (4) That the statute of Indiana provides that the wages of all persons in the employ of any person or corporation shall be exempt from garnishment, and proceedings supplemental to execution, in the hands of such person or corporation, so long as such employe remains in such employment, not exceeding one month's wages at any one time. (5) That the claim of plaintiff against the principal defendant, upon which the justice's judgment was rendered, was assigned by a citizen of Indiana to plaintiff; that the same was a debt, if any there was, contracted by said principal defendant in the state of Indiana, he then being a citizen of that state; and that such debt was assigned to plaintiff for the purpose of instituting these garnishee proceedings for the collection thereof. The circuit judge found the law upon these facts as follows: " First. The indebtedness disclosed by the garnishee was not within the jurisdiction of the justice, and was not subject to, and could not be reached by, the process of said court, either in attachment or garnishee process; second, the indebtedness or credit sought to be reached by these proceedings was not liable to process of garnishment; third, said indebtedness having arisen under a contract made payable in another state, viz., Indiana, and being absolutely exempt from garnishment by the statute of that state, the same was not liable, and could not be liable to garnishee process in these proceedings; fourth, the garnishee defendant is entitled to have judgment rendered in its favor."

The plaintiff excepted to several of the findings of facts; but we find, in the record, testimony, if the same were not improperly admitted, tending to establish all the findings. The weight of the evidence was for the trial court. We cannot disturb any of his findings, unless there is shown by the record an absolute want of any testimony to support them. The garnishee defendant also had the right to make further and supplemental disclosure, and to give in evidence matters of hearsay, even, touching its liability to the principal defendant. Sexton v. Amos, 39 Mich. 696; Newell v. Blair, 7 Mich. 104; Maynard v. Cornwell, 3 Mich. 313. The garnishee had the right, and it was its duty, to state in the answer every fact within its knowledge which had any legitimate tendency to show that it ought not to be charged. Drake, Attachm. � 630. Therefore the objections to the reception of the testimony upon which the findings of the circuit judge were based, are not tenable, unless it be that such testimony was immaterial and irrelevant, as having no tendency to defeat the plaintiff's action. Therefore the material inquiry arises, and must be disposed of, whether or not the fact of the principal defendant being all the time a resident of the state of Indiana, the contract for services being made, and the wages therefor payable, in that state, and that such services were rendered there, and also that such wages, so garnished, were exempt under the statutes of that state, have any effect upon the right of the plaintiff to recover from the garnishee. The counsel for the plaintiff claims that the exemption laws of another state cannot be pleaded or relied upon as a defense to the garnishment in this case, either by the judgment debtor or the garnishee defendant; and that the court erred, not only in admitting this evidence, but in concluding, as a matter of law, that the indebtedness from the garnishee defendant to the principal debtor was not within the jurisdiction of the justice, and not subject to the process of the court, and in the other conclusions of law as well. Upon the other hand, the counsel for the garnishee defendant contends that, under the circumstances disclosed by the finding of facts, this indebtedness had its situs in the state of Indiana, a foreign jurisdiction, and could not be subjected to the process of the justice in this case by either the attachment or garnishee process. That the justice obtained no jurisdiction, by personal service or otherwise, over the principal debtor, who was a citizen of Indiana; neither did he acquire any jurisdiction over any property belonging to such debtor, by seizure thereof; and he could not gain jurisdiction over this debt, so as to subject it to the process of attachment by the disclosure of the garnishee. If this contention be correct, it will not be necessary to examine the case any further, as in such case the judgment of the circuit court must be affirmed.

The record discloses a plain attempt to use the courts of this state to evade the exemption laws of a sister state, and to deprive the laborer in such state of the benefit of the laws to protect his wages from seizure, while he yet remains a citizen of Indiana, and has not been personally in Michigan or removed his property into this state, or acquired any property within our jurisdiction. Such a procedure should not be permitted, unless the weight of reason as well as of authority sustains it. The process by attachment is an extraordinary one, and outside the general and natural courses of the law. It is a harsh remedy at best, and, being purely statutory, the courts all agree that the processes marked out by the statute must be strictly pursued. Attachment is justified when the statute is strictly followed for legitimate purposes, but I doubt if it ever was intended to serve the uses to which it has been put in the present case. There is certainly no good reason why a citizen of Indiana should use a citizen of Michigan, through the courts of this state, to collect a debt against another citizen of Indiana whose person or property is not within our jurisdiction, and whose wages, thus sought to be reached and confiscated, are exempt, under the laws of Indiana, from such seizure. There being no good reason for it, and every principle of right and justice being against it, I am satisfied it should not be sustained. Nor can there be found any authority to support it. On the contrary, all the...