De Guzman v. Shepherd

• Decision Date: 19 December 1923
• Docket Number: No. 488.,488.
• Parties: DE GUZMAN v. SHEPHERD, Wayne Circuit Judge.
• Court: Michigan Supreme Court

225 Mich. 606

196 N.W. 523

DE GUZMAN

v.SHEPHERD, Wayne Circuit Judge.

No. 488.

Supreme Court of Michigan.

Dec. 19, 1923.

Proceeding by Adelaide De Guzman for a writ of mandamus to be directed to Frank Shepherd, Acting Wayne Circuit Judge, directing him to set aside two justice court judgments, vacate an order permitting an amended return to an execution, vacate an order appointing a receiver in a proceeding at law in the nature of a creditor's bill, and quash such proceeding. Judgment set aside as to plaintiff, and proceedings in nature of creditor's bill quashed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.J. H. M. Alexander, of Detroit, for relator.

Bernard A. Clark, of Detroit, for respondent.

WIEST, C. J.

In this proceeding we are asked to direct the circuit judge to set aside two justice court judgments, vacate an order permitting an amended return to an execution, and to vacate an order appointing a receiver in a proceeding at law in the nature of a judgment creditor's bill and to quash such proceeding.

Two judgments, in actions of assumpsit, were taken in justice court, January 21, 1922, by J. L. Hudson Company against Louis A. De Guzman and Mrs. De Guzman without having a guardian appointed for Mrs. De Guzman, who was then an infant. In justice court the infant defendant was personally served with process, and appeared specially in both cases, but for what purpose does not appear in the transcripts of the judgments, and the cases were adjourned, twice by consent, and once on cause shown, and motions to dismiss in both cases were denied, but what the motions were does not appear in the transcripts. The cases were again adjourned, twice on cause shown and once by stipulation, to the day judgments were rendered.

We notice in the transcripts that the suits were against Louis A. De Guzman and Mrs. De Guzman. The summons in each case was served on Mrs. De Guzman; ‘defendant’ appeared specially, and judgments were rendered ‘in favor of plaintiff and against defendant.’ No point, however, seems to be made as to these matters.

The judgment creditor caused transcripts of the judgments to be filed and docketed in the circuit. The executions issued in the circuit on such transcripts ran against Louis A. De Guzman and Mrs. De Guzman, and the sheriff made return that ‘Louis A. De Guzman had no goods etc.,’ and made no return as to Mrs. De Guzman. Without any return on the executions as to Mrs. De Guzman, one circuit court commissioner made an order requiring the judgment debtors to appear and make discovery of their property on February 23, 1923, under the provisions of the statute providing for proceedings at law in the nature of a judgment creditor's bill. Section 13378, et seq. C. L. 1915. On that day they were examined on oath before another circuit court commissioner, and plaintiff herein disclosed that she owned a diamond ring, given her before marriage, and then held by her attorney, evidently to secure his pay for services. March 27, 1923, the judgment creditor filed a motion in the circuit court, asking for an order appointing a receiver of the property and assets of Adelaide De Guzman, founding it on the records and files and the examination before the commissioner, as shown in the affidavit of the attorney making the motion. The same date Adelaide De Guzman, plaintiff herein, filed a motion asking the circuit court to set aside the two judgments and to quash all proceedings had thereon, for the reasons that she was an infant when the judgments were rendered, no guardian was appointed for her, and she was not liable for the accounts in suit, and all proceedings for discovery were void as no execution had been returned nulla bona as to her. The circuit judge denied the motion to set aside the judgments and quash the proceedings, appointed a receiver, and granted leave ‘to amend the sheriff's return as to Adelaide De Guzman.’

Defendant herein asserts that plaintiff's only way to review the denial of the motion to set aside the judgments is by writ of error, and review of the proceedings had in the circuit for discovery is by appeal. Review of denial of a motion to vacate a judgment docketed in the circuit court on a transcript from justice court has been held to be by certiorari. Townsend v. Tudor, 41 Mich. 263, 1 N. W. 1050. Review of any final order in proceedings in the nature of a judgment creditor's bill is by appeal, as provided in the statute relating to such a proceeding. C. L. 1915, § 13389.

We have before us the records of the proceedings from the start of the cases in justice court to and including the appointment of the receiver in the circuit, and they disclose such a succession of errors all along the line that we feel we ought to retain jurisdiction, and put an end to the litigation, even though we treat the proceeding here as certiorari instead of mandamus. This involves no more under the record before us than a mere characterization of the proceeding here by a name,...