Hatch v. Saunders

• Decision Date: 09 June 1887
• Citation: 33 N.W. 178,66 Mich. 181
• Court: Michigan Supreme Court
• Parties: HATCH and another v. SAUNDERS.

33 N.W. 178

66 Mich. 181

HATCH and another v. SAUNDERS.

Supreme Court of Michigan

June 9, 1887

Error to Cass.

CAMPBELL C.J., dissenting.

James A. Kellogg and George F. Edwards, for plaintiffs and appellants.

Howell & Carr, for defendant.

SHERWOOD J.

This suit was commenced by declaration against the defendant, who was sheriff of Cass county, and contains two counts. The first charges that the sheriff permitted one Patrick F O'Neil to escape from his custody after having arrested him on a capias ad respondendum, at the suit of the plaintiffs, whereby the "plaintiffs have been and are greatly injured and delayed in the recovery of their debt" against O'Neil, "and are likely to lose the same, *** and have lost and been deprived of the means of recovering their costs and charges" against him. The second count alleges negligence in the sheriff for not arresting O'Neil on the capias, and lays the plaintiffs' damages at the sum of one thousand dollars. The defendant pleaded the general issue. The cause was tried in the Cass circuit, before Hon. ANDREW J. SMITH, circuit judge, who at the close of the trial directed a verdict for the defendant. Plaintiffs bring error.

The record before us contains a bill of exceptions giving all the testimony taken. From it it appears the plaintiffs were a firm residing and doing business in Chicago. This business was wholesaling boots and shoes. The defendant was engaged in the boot and shoe trade in the city of Niles, and made purchases of stock of the plaintiffs, and became indebted to them therefor to the amount of $434.28, and for the recovery of this amount suit was brought and the capias issued. The affidavit upon which the writ was issued will be found in the margin. ^[1] The writ is in the usual form, dated the ninth day of December, 1885, and indorsed thereon, dated December 11th, is the undertaking of C. Fairbanks, as security for costs. It also contains a return written thereon, dated the first day of March, 1886, made by the defendant as sheriff, in which he says: "I, Frank M. Saunders, sheriff of the county of Cass, do hereby certify and return that, after diligent search and inquiry, I am unable to find the within-named defendant, Patrick F. O'Neil, within my bailiwick."

WILFORD M. HUTTON, Notary Public, Berrien Co., Mich.

The plaintiff avers in the declaration that the said Patrick F. O'Neil was, from the time of the delivery of the writ to the sheriff for service until the making of his return on the fourth day of March aforesaid, within the said county of Cass, and that the sheriff might have arrested him at any time during said period, if he had desired and had notice of his whereabouts. I think the affidavit was sufficient to give the court jurisdiction to issue the writ against O'Neil. I do not regard it subject to the infirmity pointed out in Sheridan v. Briggs, 53 Mich. 571, 19 N.W. 189. The falsity of the representations in the present case made by O'Neil are positively stated as of the knowledge of the affiant. It is a substantial compliance with the requirement of the statute, and is clearly within the rule laid down by this court in Proctor v. Prout, 17 Mich. 472; Brown v. Kelley, 20 Mich. 27; Badger v. Reade, 39 Mich. 771; Watson v. Judge Supreme Court Detroit, 40 Mich. 729; Pease v. Pendell, 57 Mich. 315, 23 N.W. 827; Stensrud v. Delamater, 56 Mich. 144, 22 N.W. 272. It was not necessary that the affidavit should be entitled in the cause. Really no cause was pending when the affidavit was made, the affidavit being the basis upon which to commence the cause or suit.

The defendant could only be arrested in the county where he was a resident, in this case. How.St. � 7547; Detroit F. & M. Ins. Co. v. Judge Saginaw Circuit, 23 Mich. 491; Haywood v. Johnson, 41 Mich. 598, 2 N.W. 926; Turrill v. Borster, 4 Mich. 177; Atkins v. Borstler, 46 Mich. 552, 9 N.W. 850.

It is claimed as error by counsel for defendant that at the time the writ was issued defendant was a resident of Berrien county, and not of the county of Cass, and that this fact appears in the affidavit for arrest. It is true the affidavit, in speaking of the defendant, represents him "of the city of Niles," which is in Berrien county; but this is not such an averment of his residence as will preclude the plaintiffs from showing that his actual residence was in the county of Cass at the time the suit was commenced. This the plaintiffs proposed to do at the trial, but were overruled by the circuit judge. This ruling was erroneous. There is nothing appearing upon the face of the proceedings in the case wherein the capias issued showing them void, and with the proof offered complete jurisdiction in the court issuing the writ would have appeared. The plaintiffs were entitled to put in their proofs and have their case tried by the jury, and the ruling of the circuit judge otherwise was incorrect.

The testimony offered by the plaintiffs to show what O'Neil said in regard to his circumstances at the time the plaintiffs' agent sold defendant goods were competent and should have been admitted. It was also competent to show that O'Neil was arrested by the sheriff or his deputy; and, under the pleadings in this case, the circuit judge should have granted the motion of plaintiffs' counsel to strike out the testimony relating to the prosecution of the defendant...