Elliotte v. Lavier, 15.

• Decision Date: 06 October 1941
• Docket Number: No. 15.,15.
• Citation: 300 N.W. 116,299 Mich. 353
• Parties: ELLIOTTE v. LAVIER et al.
• Court: Michigan Supreme Court

299 Mich. 353

300 N.W. 116

ELLIOTTE

v.LAVIER et al.

No. 15.

Supreme Court of Michigan.

Oct. 6, 1941.

Action for injuries by Margaret Elliotte against Thomas H. Lavier and another, copartners doing business as Lavier & Gale, wherein a default judgment was rendered against the defendants, and the Lincoln Mutual Casualty Company, a Michigan corporation, was summoned as garnishee. From a judgment against the garnishee defendant, the garnishee appeals.

Affirmed.Appeal from Circuit Court, Wayne County; Sherman D. callender, judge.

Argued before the Entire Bench.

Stewart A. Richard, of Detroit, for appellant.

Mahlon J. MacGregor, of Detroit, for appellee.

BUTZEL, Justice.

Margaret Elliotte was injured by the negligence of an employee of Lavier & Gale, co-partners, and principal defendants herein. Her husband sued in Detroit common pleas court and recovered judgment for loss of her services. She sued in Wayne circuit court for $12,000 for personal injuries. The same process server in his returns stated that he served summonses in each case on the same day, September 26, 1939, by delivering copies thereof to Thomas H. Lavier, one of the co-partners and principal defendants. No service was ever made on Harvey Gale, the other co-partner and principal defendant, but the service on Lavier would support judgment against both parties, 3 Comp.Laws 1929, § 14513, Stat.Ann. § 27.1439, and execution against the separate estate of Lavier and the partnership estate. 3 Comp.Laws 1929, § 14554, Stat.Ann. § 27.1519; Smith v. Runnells, 94 Mich. 617, 619, 54 N.W. 375. Being a constable, the process server was an officer of the common pleas court but not of the circuit court (People v. Moore, 2 Doug. 1), therefore his return of the common pleas summons was by officer's certificate, while his return of the circuit court summons was by affidavit of service as an individual.

Lavier & Gale never appeared in the circuit court suit. Plaintiff (Margaret Elliotte) after recovering default judgment against them, January 12, 1940, sued out the present writ of garnishment against the Lincoln Mutual Casualty Company as garnishee defendant. In its disclosure, garnishee pleaded alternatively to the jurisdiction and to the merits. These two pleas are mutually exclusive, since the plea to the jurisdiction is founded on the factual hypothesis that Lavier was not served in the circuit court suit, while the plea to the merits proceeds on the contrary assumption that he had been. The gist of the former plea is that, since ‘some sort of service as to the principal defendant’ is a jurisdictional prerequisite to maintenance of garnishment proceedings, the court lacked jurisdiction of the present garnishment suit (People ex rel. McCloskey v. Wayne Circuit Judge, 26 Mich. 100); the tenor of the latter plea is that by failing to forward the process served on him Lavier breached an explicit condition subsequent in the insurance policy, cutting off any liability thereon on the part of appellant garnishee. The plea to the merits is ‘not set forth in or necessarily suggested by the statement of questions involved’ in appellant's brief, and will not be considered (Court Rule 67, § 1 (1933); Sebastian v. Sherwood, 270 Mich. 339, 342, 343, 259 N.W. 287. We shall confine our sttention to the sole question therein stated to be involved, which is:

‘In the trial of a garnishment issue, is the testimony of the surviving defendant partner of principal defendants usable where it covers a conversation between the...