J. O. Nessen Lumber Co. v. Ray H. Bennett Lumber Co.
| Decision Date | 04 June 1923 |
| Docket Number | No. 35.,35. |
| Citation | 193 N.W. 789,223 Mich. 349 |
| Court | Michigan Supreme Court |
| Parties | J. O. NESSEN LUMBER CO. v. RAY H. BENNETT LUMBER CO., Inc. (CHARLES HEBARD & SONS, Inc., Garnishee). |
OPINION TEXT STARTS HERE
Certiorari to Circuit Court, Baraga County; Patrick H. O'Brien, Judge.
Action by the J. O. Nessen Lumber Company against the Ray H. Bennett Lumber Company, Incorporated, and Charles Hebard & Sons, Incorporated, garnishee. Judgment for plaintiff, and defendant and garnishee bring certiorari. Writ dismissed.
Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Swaby L. Lawton, of Hancock (Stanley & Gidley, of Buffalo, N. Y., of counsel), for appellant Ray H. Bennett Lumber Co.
H. G. Schulte, of Houghton, for appellee.
The plaintiff began suit in the Baraga circuit court against the principal defendant and secured service of process on the garnishee defendant. All are foreign corporations. The principal defendant was not served. It filed a plea of the general issue and moved to dismiss, claiming that the garnishee had no property of the principal defendant ‘in its hands and under its custody and control’ as stated in the affidavit on which the writ of garnishment issued. Proofs were taken and the motion denied. The facts were stipulated and are as follows:
On September 26, 1919, the Bennett Company entered into a contract with Hebard & Sons for the purchase of all the hemlock lumber it would cut for the balance of that season at prices agreed upon. All lumber not shipped before the close of navigation was to be inspected and paid for and left piled on a dock on Hebard's premises for loading the following spring. 2,739,000 feet were cut, piled on the dock, and paid for by the Bennett company.
The question presented is: Was this lumber in the custody and under the control of Hebard & Sons so as to subject it to garnishee process? The words ‘under his custody or control’ are used in section 13122, 3 Comp. Laws 1915, under which the writ issued. Other sections which follow (13128, 13129, 13153) indicate that the Legislature treated these...
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Burr v. Heffner
...defendant could have maintained an action against the garnishee to recover the property in question. Nessen Lbr. Co. v. Ray H. Bennett Lbr. Co., 223 Mich. 349, 193 N.W. 789. The word ‘sue’ is defined in 2 Bouv. Law Dict., Rawles Third Revision, p. 3176, 8th ed., as meaning ‘to commence or t......
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Isaac Van Dyke Co. v. Moll
...be sued upon at the time of the service of the writ, or owing but not then due, is subject to garnishment. Nessen Lumber Co. v. Bennett Lumber Co., 223 Mich. 349, 193 N. W. 789. The question here presented is whether the defendant company was indebted to the defendant Moll in any sum for wh......
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Zabonick v. Ralston
...91, supra. The test is whether defendant Ralston might have maintained an action against his insurer, J. O. Nessen Lumber Co. v. Ray H. Bennett Lumber Co., 223 Mich. 349, 193 N. W. 789, for, as we have just written in Musser v. Ricks, Defendant, and Preferred Auto Ins. Co., Garnishee Defend......
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Alvin R. Durham Co. v. Chi. & N. W. Ry. Co.
...That case having been eliminated as an authority by the Supreme Court of the United States, and the case of Nessen Lumber Co. v. Bennett Lumber Co., 223 Mich. 349, 193 N. W. 789, having been examined and distinguished, we are all agreed that the second judgment of the trial court should be ......