Fairbanks v. Bennett

• Decision Date: 20 December 1883
• Court: Michigan Supreme Court
• Parties: FAIRBANKS v. BENNETT.

17 N.W. 696

52 Mich. 61

FAIRBANKS v. BENNETT.

Supreme Court of Michigan

December 20, 1883

After trespass has been brought for the seizure of goods under an attachment which was not properly served, the defect in service cannot be cured, for the purpose of the action in trespass, by taking out a new attachment.

Error to St. Joseph.

D.E. Thomas, for plaintiff and appellant.

C.W.W Clarke, for defendant.

SHERWOOD J.

The action in this case is trespass, for wrongfully taking and carrying away a quantity of goods, claimed to be the property of the plaintiff, and for injuries consequent thereon. Plea general issue, with notice that the goods were taken by defendant as an officer, under attachment against the property of Charles N. Fairbanks, husband of plaintiff. On the twenty-fourth day of February, 1883, suit was commenced before a justice of the peace by George W. Dubois & Co., by writ of attachment against Charles N. Fairbanks, for $250. The defendant was constable, and by virtue of the writ seized the goods of the plaintiff and made an inventory thereof. The defendant not being found, service was made by copy, which was too late. The writ was made returnable on the fifth day of March, and the writ was returned by the defendant the same day. The defective service is conceded by defendant. The goods were worth about $2,000. At the time the defendant seized the stock of goods they were in possession of the plaintiff, and the testimony tended to show that she purchased them of her husband on the thirty-first day of January previous, and paid therefor $510 in cash, and released a claim she held against him then amounting to $1,266, secured by chattel mortgage on the goods. The goods were taken from the possession of the plaintiff, held by him until the fifth day of March, when the plaintiff commenced her suit therefor. On the fifth day of March, when the defective service was discovered by the defendant, the suit before the justice was discontinued, and a new attachment was taken out and levied upon the same property, and service of process was regularly made. The defendant seeks to justify under the two writs. The case was tried by jury, and under the testimony and the charge of the circuit judge the jury rendered a verdict for the defendant, and the case is now before us for review on bill of exceptions containing all the testimony given in the case.

The possession of the property by the plaintiff and her ownership as against her husband are conceded. It is also conceded that no legal service was made of the first writ of attachment. Still the property was taken from the plaintiff, as it is claimed, by virtue of such writ. The proceedings before the magistrate were special and statutory, and every requirement of the statute must be strictly observed; and the rule applies to the officer as well as to the parties. If any of the provisions of the statute are not complied with by the officer in levying or executing his writ, the lien obtained is lost. Greenvault v. Farmers' & Mechanics' Bank, 2 Doug. 502; Buckley v. Lowry, 2 Mich 420; Roelofson v. Hatch, 3 Mich. 377; Miller v. Babcock, 29 Mich. 526; Adams v. Abram, 38 Mich. 302. Under the conceded facts in this case it was incumbent upon the defendant to show not only that the transfer of the goods was fraudulent as to creditors of Charles N. Fairbanks, but that defendant acted under a valid writ against him and executed it in a legal manner. 7 Barb. 182; 3 Head, 18. A judgment in the first attachment suit upon the claims sought to be recovered not having been obtained, there was no evidence that the plaintiff in that attachment was a creditor. School-dist. v. Macloon, 4 Wis. 88; Cook v. Miller, 11 Ill. 610. No legal service of the writ of attachment in the first suit of any kind is shown or claimed. In order to be protected by process of this kind, the officer must proceed with his writ as the law directs. Russ v. Butterfield, 6 Cush. 242; Whitney v. Jenkinson, 3 Wis. 363; Cooley, Torts; Michels v. Stork, 44 Mich. 42; [S.C. 5 N.W. 1035.]

It is claimed by defendant's counsel that because a second suit was commenced as soon as it was ascertained the proceedings in the first were worthless, the commencement of the second in some measure excused the illegal proceedings in the first. We know of no rule of law giving the commencement of a suit any such...