Kennedy v. McLellan

• Decision Date: 18 October 1889
• Court: Michigan Supreme Court
• Parties: KENNEDY v. MCLELLAN ET AL.

43 N.W. 641

76 Mich. 598

KENNEDY v. MCLELLAN ET AL.

Supreme Court of Michigan

October 18, 1889

Error to circuit court, Wayne county.

MORSE J.

May 16 1888, the plaintiff sued out a writ of attachment against the principal defendant, George Kennedy, in the circuit court for Wayne county. As a basis for such writ, she made affidavit that he was indebted to her in the sum of $2,500, as near as she could estimate the same, over and above all legal set-offs, and that the same was due upon implied contract and that "she had good reasons to believe that the said George Kennedy is not a resident of the state of Michigan and has not resided therein for three months immediately preceding the time of making this affidavit." The writ was made returnable on Saturday, May 26, 1888, at 9 o'clock A. M. On the same day the attachment was issued, May 16, 1888, she made affidavit for writ of garnishment, and the same was issued against McLellan and Anderson, returnable June 2, 1888. This writ was served personally May 16, 1888, and on the next day the sheriff returns that he attached the following property by virtue of the writ of attachment, to-wit: "All the right, title, and interest of George Kennedy in and to two certain life insurance policies, described as follows, to-wit: Policy number 157,819, issued by the Connecticut Mutual Life Insurance Company upon the life of James H. Kennedy, (deceased,) and paid up, for one thousand and twelve ($1,012) dollars; and policy numbered 6,436, issued by the Mutual Life Insurance Company of New York on the life of James H. Kennedy, (deceased,) for the sum of one thousand ($1,000) dollars, with additions to the same now amounting to eleven hundred and fifty-eight ($1,158) dollars, which I could not cause to be appraised, the defendant's interest being an unknown and indefinite quantity." He also returned, of date May 28, 1888, that he was unable to find the defendant George Kennedy within his bailiwick. June 16, 1888, the plaintiff filed her declaration against the defendant in the attachment suit. June 18, 1888, the plaintiff caused to be personally delivered to the defendant George Kennedy true copies of the original affidavit filed and writ of attachment issued, and the original affidavits filed and writs of garnishment issued, upon which copies of said writs of garnishment true copies of the return of service were indorsed; and also caused to be personally served upon him a notice to appear and defend said suit within 30 days after the service of said notice, or his default wound be entered in the same. July 23, 1888, the default of said defendant was entered, which was made absolute on the 28th day of July, same year. August 1, 1888, judgment on said default in the attachment suit was rendered before Judge BREVOORT in favor of the plaintiff, against said defendant George Kennedy, in the sum of $3,287.50 and costs of suit. August 4, 1888, Charles H. Fisk, as attorney for said defendant Kennedy, entered a motion to set aside said default and judgment for the following reasons: First, the court had no jurisdiction over the defendant; second, no declaration was filed before default, or at any time; third, the time within which, by the rules of the court, the defendant might appear, had no expired when said default was taken. This motion was heard on affidavits, and the files and records of the court in the case, and denied, with costs, August 28, 1888. In the mean time, and on the 9th day of June, 1888, McLellan and Anderson filed their disclosure to the writ of garnishment, denying that they were owing anything to George Kennedy, and averring that they had no money, property, goods, chattels, credits, or effects in their hands, or within their custody or control, belonging to him. They further disclosed "that, some time in April of 1887, one Henry Kennedy, whom these deponents have been informed is a brother of said George Kennedy, came to deponent, having in his possession two policies of life insurance,-one issued by the Connecticut Mutual Life Insurance Company as a paid-up policy, or one upon which no further premiums will become due, and agreeing to pay the sum of ten hundred and twelve dollars ($1,012.00) upon the death of James H. Kennedy; the other one issued by the Mutual Life Insurance Company of New York, in and by which that company agreed to pay the sum of one thousand dollars ($1,000.00) upon the death of said James H. Kennedy, the said last-mentioned policy having become, by its terms, self-sustaining, or one in which no further premiums would be called for. And the said Henry Kennedy assigned to deponents whatever interests he had, or might thereafter have, and all sums of money that he expected to get by reason of the said two policies of insurance, of which he and his brother, George Kennedy, were the joint beneficiaries." And that they have been informed that the assured, James H. Kennedy, died May 11, 1888. And that they were notified, after the service upon them of the writ of garnishment, that George Kennedy had assigned his interest in said policies of insurance. This assignment, however, turns out to have been made subsequently to the service of the writ of garnishment upon them. An issue was framed on this disclosure, and a trial had in November, 1888, before Judge HOSMER of the Wayne circuit court. Verdict and judgment for the defendants was directed; the circuit judge holding that the policies of insurance were not susceptible of being reached in this way. He also held the judgment in the attachment suit invalid. That, when the writ was returned unserved, it became the duty of the plaintiff, and it was essential, to issue an alias writ, in order to keep the garnishment suit alive, and "that there was such an hiatus after the return of the writ of attachment, and the return of the writ in garnishment, that all the proceedings went down." The plaintiff brings error.

To sustain this judgment, the counsel for the defendants assert- First, that there was no jurisdiction over the principal defendant, and consequently no valid judgment ever rendered; and, secondly, the...