Gerow v. Hyde

• Decision Date: 17 September 1902
• Court: Michigan Supreme Court
• Parties: GEROW v. HYDE.

91 N.W. 615

131 Mich. 442

GEROW v. HYDE.

Supreme Court of Michigan

September 17, 1902

Error to circuit court, Cheboygan county; Frank Shepherd, Judge.

Garnishee proceedings by Arthur M. Gerow against Robert N. Hyde garnishee. Judgment for garnishee. Plaintiff brings error. Affirmed.

C. S Reilley, for appellant.

Cross &amp Harpster, for appellee, cited the following cases: Segar v. Lumber Co., 81 Mich. 344, 45 N.W. 982; Lorman v Insurance Co., 33 Mich. 65; Spears v. Riley, 43 Mich. 541, 5 N.W. 1038; Weirich v. Scribner, 44 Mich. 73, 6 N.W. 91; People v. Cass Circuit Judge, 39 Mich. 407; Segar v. Lumber Co., 81 Mich. 344, 45 N.W. 982; Laidlaw v. Morrow, 44 Mich. 548, 7 N.W. 191.

HOOKER C.J.

The plaintiff recovered a judgment against one Stuart in justice court in 1897. He commenced garnishee proceedings against Ryan in 1900, before the successor in office of the justice of the peace who rendered the judgment against Stuart. Garnishee process being served, Ryan filed his disclosure, admitting his indebtedness, on October 29, 1900, and on October 30, 1900, the return day of the garnishee summons, in the absence of the garnishee, who did not appear. An appeal was taken to the circuit court by Ryan, who was permitted to file a plea of the general issue against plaintiff's objection. Upon the trial, evidence was offered tending to show that the disclosure was a mistaken one, and that the garnishee in fact did not owe Stuart, but another person, and this the jury must have found to be true. It is contended that he should have been bound by the disclosure, and that the court erred in receiving the plea, and admitting this defense. Several Michigan cases indicate that it is the duty of a garnishee to avoid compromising the legal rights of the original defendant by waiver or untrue admissions, and it cannot be doubted that voluntary submission to a judgment, with knowledge that such defendant was not his creditor, would not protect him against the real creditor. See defendant's brief for cases cited.

In this case the testimony, which is all returned, shows clearly that after disclosure by the garnishee defendant, a claim was made against him for the money due for the articles purchased which he could not safely ignore. It would have been a hardship to hold him bound by his disclosure, and it was competent for the court to permit the proceedings to be amended by the filing of a plea which would support...