Hyde v. Nelson
| Decision Date | 30 May 1863 |
| Citation | 11 Mich. 353 |
| Court | Michigan Supreme Court |
| Parties | Oliver M. Hyde v. William A. Nelson |
Heard May 26, 1863
Certiorari to F. B. Porter, Esq., Circuit Court Commissioner for Wayne county, who had made an order dissolving an attachment issued in Hyde's favor against Nelson, from the Wayne Circuit Court.
Order affirmed.
C. P Crosby, for plaintiff in error, argued that after appearance in the action and plea to the merits, defendant was too late to move to dissolve the attachment. Appearance and plea operated as a waiver of all prior defects in the proceedings not going to the jurisdiction: Drake on Attachments, 379; 5 Mo. 544; 13 Mo. 547; 31 Ala. 659; 17 Miss. 345; 3 Ala. 43; 2 Green (Iowa), 467; Buckley v. Lowry, 2 Mich. 418; Galloway v. Holmes, 1 Doug. Mich., 350; Greenvault v. F. & M. Bank, 2 Doug. Mich., 502; Crane v Hardy, 1 Mich. 56; Stewart v. Hill, 1 Mich. 265; 1 Ind. 121; 1 Gilm. 35; 25 Ala. 534. The writ of attachment is an entirety, and if the commissioner's order dissolving it is correct, the suit is out of court. There is no practical difference between the setting aside of an attachment for formal defects in the affidavit, and the dissolution of the writ by a commissioner upon the ground that the plaintiff had not a sufficient cause for suing it out. In either case the suit is at an end: Green's Pr., 69; 1 Doug. Mich., 502.
The commissioner erred in allowing Nelson to testify that he was not indebted to Hyde. The indebtedness is not in issue, and must be regarded for the purpose of the proceeding as admitted.
The evidence returned by the commissioner shows a sufficient cause for suing out the writ.
D. C. Holbrook, for defendant in error.
A motion was made before a Circuit Court Commissioner to dissolve an attachment, which upon hearing of proof was granted. It is now alleged on certiorari that the order dissolving the attachment was erroneous.
The suit was at issue in the Circuit Court; and it is claimed that no application can be made to dissolve an attachment after appearance.
The statute authorizing these applications does not limit the time when they may be made. It declares that in all cases where the writ has been issued and served, it shall be lawful for any defendant, whose property may be attached, to apply for a dissolution of the attachment. When the writ issues, the object of making the attachment is not merely to bring the defendant into court, but also to retain the property that it may be ready to be applied on any judgment which may be obtained. The defendant can only be held liable to a personal judgment, binding in all respects, when he has been personally served or shall appear. And in such case the suit proceeds as if he had been summoned: Camp. L., § 4763.
A creditor has no right to pursue a resident debtor found within the State by anything except a personal service of process or declaration, unless the debtor has been guilty of some one of the wrongful and fraudulent acts set forth in the statute. If he has not committed any of these the creditor ought not justly to obtain any specific lien in advance of his judgment. The writ of attachment issues on mere information and belief of these charges, and if at any time before judgment the defendant upon a hearing on that subject is not found to have been guilty of them, the plaintiff, if the writ has been served, or if there has been an appearance can still recover such judgment as he would have done had he commenced his action in the usual way. It was held in Paddock v. Mathews, 3 Mich. 18, that the object of the application to dissolve an attachment under the statute is merely to release the property, although if done before appearance, it will, unless otherwise ordered, carry the suit with it--a result which could not follow after an appearance. If the attachment is dissolved before appearance, the only ground on which a defendant could have been properly served originally is removed, and it would be improper to give the plaintiff any right of compulsion, unless where the commissioner sees fit to order it. The term "attachment" is evidently used in this statute in its common law sense of a levy or seizure, and not to designate the writ under which the seizure is made. There is no good reason why the debtor should not be entitled to this privilege at any time before judgment. The plaintiff's claim to a personal judgment is in no way affected by it after appearance, and, as already stated, a personal judgment is all that he should have, unless the defendant, if resident, has been guilty of fraud. The power of...
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Czuprynski v. Bay Circuit Judge
...in scope. Questions of fact may not be reviewed. Brown v Blanchard, 39 Mich 790 [1878]. Disputed facts cannot be determined. Hyde v Nelson, 11 Mich 353 [1863]. Nor can the weight of evidence be reviewed. Linn v Roberts, 15 Mich 443 [1867]. Only errors of law may be In Powers v. Secretary of......
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Conely v. McDonald
...reversed on the ground that the justice erred, in law, in rendering the judgment he did without such evidence." Or, as was said in Hyde v. Nelson, 11 Mich. 353, the question came up on certiorari, "It is only when there is an entire absence of proof upon some material fact found, that such ......