Fraser v. Collier Const. Co.

• Decision Date: 06 April 1943
• Docket Number: No. 110.,110.
• Citation: 305 Mich. 1,8 N.W.2d 889
• Parties: FRASER et al. v. COLLIER CONST. CO.
• Court: Michigan Supreme Court

305 Mich. 1

8 N.W.2d 889

FRASER et al.

v.COLLIER CONST. CO.

No. 110.

Supreme Court of Michigan.

April 6, 1943.

Action by James W. Fraser, Jr., and another against the Collier Construction Company for money due under a subcontract to dig, backfill, and tamp holes for erection of steel towers for an electric power transmission line, which defendant had a contract to erect for the Consumers Power Company, against which plaintiffs brought garnishment proceedings. Judgment for plaintiffs, and defendant appeals.

Affirmed.

WIEST and BUSHNELL, JJ., dissenting.

Appeal from Circuit Court, Jackson County; Benjamin Williams, judge.

Before the Entire Bench.

Bart T. McIntyre, of Cleveland, Ohio, and Dahlem & Dahlem, of Jackson, for plaintiffs-appellees.

Kleinstiver & Anderson, of Jackson (Sanders & Sanders, of Cleveland, Ohio, and Edmund C. Shields, of Lansing, of counsel), for appellant.

BOYLES, Chief Justice.

This case was before us in Fraser v. Collier Construction Co. 297 Mich. 641, 298 N.W. 313, where we upheld the jurisdiction of the court and the sufficiency of the service of process. The cause was remanded for further proceedings in the court below, and trial before jury was had, resulting in a substantial verdict and judgment for plaintiff. Defendant on this appeal assigns 129 grounds for reversal, which have been consolidated in appellant's statement of questions involved and may be grouped as follows:

(1) Error in granting plaintiff's motion to add William J. Fraser as a party plaintiff, the case having been started by James W. Fraser, Jr., as plaintiff in garnishment proceedings;

(2) Error in denying defendant's motion to dismiss on the ground that plaintiffs were either copartners or doing business under an assumed name, without filing a certificate required by statute;

(3) Error in denying defendant's motion to require plaintiffs to elect whether they relied on express or implied contract;

(4) Error in charging the jury as to the respective claims of the parties;

(5) Error in receiving or excluding testimony;

(6) That the verdict was against the great weight of the evidence.

The suit was brought to recover a sum of money claimed to be due plaintiffs on a construction subcontract to dig, backfill and tamp holes for the erection of steel towers for an electric power transmission line. The defendant had a contract to erect this electric transmission line for the Consumers Power Company between Cement City and Adrian in this State, and sublet a portion of the contract to the plaintiffs to dig, backfill and tamp four holes for each of the steel towers.

Plaintiff James W. Frazer, Jr., a resident of Cleveland, Ohio, on May 27, 1940, started suit by summons in the circuit court for the county of Jackson against the defendant, Collier Construction Company, an Ohio corporation, and simultaneously filed with the clerk of the court an affidavit for writ of garnishment against the Consumers Power Company, a Maine corporation having its principal place of business and office in the city of Jackson in said county. Both Collier Construction Company and Consumers Power Company were authorized to do business in this State and had either an officer or a resident agent in this State to accept service of process. The writ of garnishment was served on the Consumers Power Company on the day of issuance. On June 7, 1940, the plaintiff filed in said court a declaration on the common counts. On June 14, 1940, proof of service was filed in the form of affidavits stating that the summons in the principal suit, together with a true copy of the affidavit and writ of garnishment and a notice to appear, was personally served on the acting deputy secretary of State in the absence of the secretary of State, and true copies thereof sent by registered mail, postage prepaid, to Collier Construction Company on June 10, 1940; proof of service by affidavit filed June 14th also showed that the summons in the original suit, together with the notice to appear, and true copies of the affidavit and writ of garnishment, were personally served June 12, 1940, on the duly appointed resident agent of Collier Construction Company in this State. On June 5, June 10 and July 30, the Collier Construction Company appeared specially and filed several motions to quash the service of summons, notice, affidavit and writ of garnishment, and to dismiss both the principal suit and the garnishment suit. These motions were heard by the circuit judge and granted, and on November 1, 1940, an order was entered quashing all of the personal and substituted services on the principal defendant, also quashing the writ of garnishment and the garnishee proceedings; and both the principal suit and the garnishment suit were dismissed. From this order, plaintiff appealed and in the briefs filed in this court on that appeal, the question for decision was stated as follows:

(By plaintiff) ‘1. Did the lower court have jurisdiction of this action commenced by a non-resident plaintiff in garnishment under § 14885 of the Compiled Laws of 1929 for the State of Michigan (Mich. Stat. Ann. § 27.1883)?’

(By defendant) ‘2. Did the circuit court for Jackson county have jurisdiction in a suit by a nonresident plaintiff, against defendant, an Ohio corporation licensed in Michigan and having its principal office in Lenawee county, where the cause of action did not accrue in Jackson county, and personal service was not made upon the defendant in Jackson county?

‘3. Does section 14885, C.L. 1929, apply to an Ohio corporation duly licensed to do business in Michigan and having a principal office and resident agent in Michigan?

‘4. Did the affidavit in garnishment give the court jurisdiction and authorize substituted service under section 14885, C.L. 1929?’

On that appeal, the order of the lower court dismissing the cause was reversed and the case remanded. Mr. Justice Chandler writing for this court held that the service was sufficient, and that the court had jurisdiction in both the principal suit and the garnishee proceedings. Fraser v. Collier Construction Co., supra.

Defendant now contends that in any event jurisdiction over it as the principal defendant backs up to the garnishment proceeding, and that if the affidavit in garnishment failed to state that William J. Fraser also had an interest in the subject matter, the court had no jurisdiction over the garnishee suit, ergo, no jurisdiction over the principal suit. The question now comes before us in the following manner: The suit was originally started by James W. Fraser, Jr., in his own name individually, and the affidavit for the writ of garnishment was made by James W. Fraser, Jr., stating that Collier Construction Company was indebted to him. During the progress of the trial in the principal suit, the defendant moved to dismiss on the ground that James W. Fraser, Jr., the original plaintiff, was not the only party in interest, that the contract was joint between him and his brother, William J. Fraser. Plaintiff moved to add William J. Fraser as a party plaintiff, which motion was granted. Defendant insists that under the circumstances of this suit this was error.

Conceding that the failure to include William J. Fraser in the affidavit of garnishment might have some application in connection with defendant's present claim that William J. Fraser cannot be added as a party plaintiff without disturbing the jurisdiction of the court in the principal suit, the claim lost all merit when defendant subsequently entered a general appearance in the principal suit. On June 5, 1941, after the remittitur to the circuit court was filed, the defendant, Collier Construction Company, entered a general appearance in the circuit court, with request for copy of the declaration filed in the cause, and on August 23, 1941, filed a general answer to plaintiff's declaration. We are now referring to the principal suit.

‘After pleading and going to trial in an action begun by capias, defendant cannot insist on objections to the sufficiency of the affidavit for the writ.’ Taylor v. Adams (syllabus), 58 Mich. 187, 24 N.W. 864.

‘By pleading and going to trial on the merits, after an adverse decision of a motion to quash a writ of attachment for defective service, defendant waives such defects, and cannot thereafter object to the manner in which he was brought into court.’ Austin v. Burroughs (syllabus), 62 Mich. 181, 28 N.W. 862.

‘By filing a declaration, as commencement of suit, the plaintiff submits himself to the jurisdiction of the court, as does the defendant by appearing and pleading, without the required statutory service of the declaration.

‘So held, where non-resident plaintiffs filed a declaration against non-resident defendants, as commencement of suit upon a contract for building a railroad in this State, and the defendants, through attorneys of this State, voluntarily appeared, and pleaded to the declaration.’ Cofrode v. Wayne Circuit Judge (Syllabus), 79 Mich. 332, 44 N.W. 623,7 L.R.A. 511.

‘It is now contended by counsel for plaintiff that by thus pleading to the merits, and going to trial thereunder, the defendant waived the question of due personal service of the writ by which the cause was commenced. That question is expressly ruled by Manhard v. Schott, 37 Mich. 234, and the cases there cited, in which it was held that pleading to the merits brings one into court, whether lawfully served with process or not, and that he cannot afterwards object to the manner in which he was brought in.’ Improved-Match Co. v. Michigan Mutual Fire Ins. Co., 122 Mich. 256, 80 N.W. 1088, 1089.

Butcher v. Cappon & Bertsch Co., 148 Mich. 552, 112 N.W. 110, 111,12 Ann.Cas. 169, was an attachment case, started by filing an affidavit which failed to state that the defendant was indebted to the plaintiff, but stated that the defendant was indebted to ‘this deponent,’ and there were two plaintiffs. This court held that the affidavit was jurisdictionally...