Emerson v. Detroit Steel & Spring Co.

• Decision Date: 17 April 1894
• Citation: 58 N.W. 659,100 Mich. 127
• Parties: EMERSON et al. v. DETROIT STEEL & SPRING CO. SAME v. SPEARMAN et al.
• Court: Michigan Supreme Court

58 N.W. 659

100 Mich. 127

EMERSON et al. v. DETROIT STEEL & SPRING CO.

SAME v. SPEARMAN et al.

Supreme Court of Michigan

April 17, 1894

Appeal from circuit court, Wayne county, in chancery; George S Hosmer, Judge.

Suits by Rufus H. Emerson and another, receivers of the George T Smith Middlings Purifier Company, against the Detroit Steel &amp Spring Company, John J. Spearman, and others, to set aside attachments. Decree for complainants. Defendants appeal. Modified.

Moore & Moore (William H. Wells, of counsel), for appellants.

Thomas A. Wilson (Edwin F. Conely, of counsel), for appellees.

MONTGOMERY J.

The complainants were, after the making of a common-law assignment by the George T. Smith Middlings Purifier Company appointed by the circuit court in chancery to act as receivers for the assigned estate, and in that capacity filed two several bills against the two defendants named, asking to have attachments which had been sued out by the defendants herein against the property of the purifier company set aside, upon the grounds-First, that the proceedings were so irregular as to render the attachments invalid; and, second, that there existed no sufficient ground for suing out an attachment at the time the affidavits were sworn to. The defendants contended that the court of chancery has no jurisdiction to set aside an attachment at the suit of an assignee for the benefit of creditors. The precise question was before the court in Byles v. Rowe, 64 Mich. 523, 31 N.W. 463. Justices Champlin and Sherwood held that the assignee had such a right, Mr. Justice Champlin placing his decision on the ground that the assignee is a representative of creditors, and in that position is entitled to question the priority of such lien. Justice Sherwood reached the same result by a somewhat different process of reasoning. Justice Campbell dissented wholly, and Mr. Justice Morse expressed no opinion upon the question herein involved. We are satis fied that the conclusions of Mr. Justice Champlin are consonant with reason and authority, and should be followed. A commonlaw assignee under our statutes is a representative of creditors. He is, in effect, a lienholder in trust for creditors. It is settled that a subsequent attaching creditor may have relief in equity against an unauthorized attachment by another. Hale v. Chandler, 3 Mich. 531; Hinchman v. Town, 10 Mich. 508; Edson v. Cumings, 52 Mich. 52, 17 N.W. 693. And we are convinced that an assignee for general creditors should have the same remedy. Any other rule would result in this: that property seized by an unauthorized attachment may be reached by a subsequent attaching creditor, but it cannot be distributed pro rata among all creditors. It is suggested that the assignee has the right to intervene in a suit at law, but the contrary was held in Rowe v. Kellogg, 54 Mich. 206, 19 N.W. 957.

Numerous objections are made to the regularity of the attaching proceedings.

The affidavits, after stating that defendants are justly indebted to plaintiff upon contracts, etc., each state that the defendants fraudulently contracted the debt or incurred the obligation respecting which the suit is brought, using the language of the statute. It is contended that the use of the disjunctive "or" renders the affidavit invalid. We hold the affidavit sufficient in this respect. The incurring of an obligation under the statute can be nothing other than contracting an indebtedness, in a case where the suit is brought, as it must be under the statute, upon contract, and where the affidavit shows that it is brought upon contract. If the defendants incurred an obligation, it was an obligation to pay money. Each phrase expresses the same thing in a different way. The distinction between the cases where the use of the disjunctive renders the affidavit invalid and those in which it does not is well stated in Drake on Attachments, at section 102: "Where the disjunctive 'or' is used, not to connect two distinct facts of different nature, but to characterize and include two or more phases of the same fact, attended with the same result, the construction just mentioned [that is, rendering the affidavit void for uncertainty] would be inapplicable." See, also, cases cited in note, and Wap. Attachm. p. 98.

It is suggested that an expression in one of the affidavits stating that the debt is due to plaintiffs from defendants by express contract and by implied contract, is as indefinite as the use of the word "or" would be. We do not see how this can be maintained. The statement shows affirmatively the indebtedness, and that the same is due upon express and upon implied contract. The question is ruled by Buehler v. De Lemos, 84 Mich. 554, 48 N.W. 42. In the case of the Spearman Iron Company the affidavit did not state the names of the co-partners, and it is claimed that this was fatal. It did appear, however, from the affidavit that the Spearman Iron Company was located at Sharpesville; that Benjamin E. Van Court was its agent; that it was the concern with which the defendants had the dealings which were the basis of the suit. We think, under the holding in Barber v. Smith, 41 Mich. 138, 1 N.W. 992, the real plaintiff was sufficiently denoted by the affidavit, and that an amendment showing the names of the plaintiffs would have been permissible. The defendants appeared and...