Matthews v. Densmore

• Decision Date: 30 April 1880
• Citation: 43 Mich. 461,5 N.W. 669
• Court: Michigan Supreme Court
• Parties: MATTHEWS v. DENSMORE and others.

5 N.W. 669

43 Mich. 461

MATTHEWS v. DENSMORE and others.

Supreme Court of Michigan

April 30, 1880

A marshal, under and by virtue of a writ of attachment, took goods of the debtor from the possession of mortgagees thereof. The writ was valid upon its face, but the affidavit on which it was allowed was fatally defective. Held, that to justify the taking he was bound to show a valid writ, issued upon sufficient affidavit.

Error to Ingham.

Julian G. Dickinson and John D. Conely, for plaintiff in error.

Henry P. Henderson, for defendants in error.

COOLEY J.

Plaintiff in error is marshal of the United States for the eastern district of Michigan, and as such levied an attachment issuing out of the United States circuit court for that district, upon a stock of goods in possession of the defendants in error.

The plaintiff in the attachment composed the firm of Simonds Hatch & Whitten, and the defendants the firm of Gates &amp Marler. Before the attachment was served Densmore, by virtue of one chattel mortgage given by Gates &amp Marler, and Elisha P. and De Witt Grow, by virtue of another, had jointly taken possession of the stock of goods, and were then in possession and making sale of them. When the marshal seized the goods and dispossessed them they brought suit in trespass. The marshal justified under his attachment. On the trial the attachment was held to be void for fatal defects in the affidavits on which it issued, and the plaintiffs had judgment.

The record in error presents only the one question, whether the court was right in ruling out the officer's justification. In this court scarcely an attempt has been made to support the affidavit. The statute under which the writ was taken out requires the plaintiff, or some one in his behalf, to make affidavit of the amount owing to him from the defendant, over and above all set-offs, and that the same is due. Comp.Laws, � 6398. The defect in the affidavit in this case was that it did not aver that the debt was due. ^[*]

The affidavit might be true, and yet no right of action have accrued upon it. Cross v. McMahon, 17 Mich. 571; Wells v. Parker, 26 Mich. 102. As this proceeding is extraordinary, and depends wholly upon the statute, the failure to follow the statute in this important particular was correctly held to render the affidavit nugatory. It is nevertheless urged on behalf of the marshal that, though the affidavit was defective, his writ was fair upon its face, and was, therefore, a complete protection to him, on the familiar principle that an officer is justified in obeying any process which appears to be lawfully issued to him, and which on its face apprises him of no legal reason why he should refrain from doing so. Erskine v. Hohnbach, 14 Wall. 613; Bird v. Perkins, 33 Mich. 28; Watson v. Watson, 9 Conn. 140; Lott v. Hubbard, 44 Ala. 593; Hill v. Figley, 25 Ill. 156; Seekins v. Goodale, 61 Me. 400; Underwood v. Robinson, 106 Mass. 296; Walden v. Dudley, 49 Me. 419; Gore v. Gorden, 66 N.C. 371.

And no doubt the writ in this case must be regarded as fair on its face. Under the general law relating to attachments, where the suit is begun by that writ, the affidavit is attached to and in legal effect becomes a part of it, and if then the affidavit is void the writ is void also. But under an amendatory statute passed in 1867, which permits the issue of the writ in pending suits, the affidavit is filed with the clerk, and the officer to whom the writ is issued is supposed to know nothing of it. Comp.Laws, � 6433 It was under the amendatory statute that the writ in this case was issued, and an inspection of its provisions shows that the writ contains all the recitals that the statute requires. Comp.Laws, � 6434. But the principle which is appealed to has no application to a case of this description.

The marshal in this case is not seeking to defend himself under his writ; he is endeavoring to assail the title of others. He has not seized goods in the hands of Gates & Marler and confessedly owned by them, but he has taken goods away from Densmore and the Grows to which they assert a title as mortgagees, and is seeking to hold them on the alleged ground that, by virtue of a writ against Gates & Marler in favor of certain of their creditors, he is in position to contest the right set up by the mortgagees. Now, if, in point of fact, he has a valid writ of the kind he claims, the marshal, representing the creditors, is in position to attack the mortgage; but if he has no such writ it is no concern of his whether the mortgages are valid or not.

The first step in his justification is, therefore, to show, not a writ merely, but a valid writ, and there can be no valid writ of attachment without a sufficient affidavit. Earl v.

Camp 16 Wend. 562; Parker v. Walrod, 16 Wend. 514, 517; Spafford v. Beach, 1 Doug. (Mich.) 199; Leroy v. East Saginaw, 18 Mich. 233; Watkins v. Wallace, 19 Mich. 57, 74. The marshal understood this, and endeavored to satisfy the rule by producing a certified copy of the affidavit. ...