Miller v. Bradway

• Citation: 300 N.W. 889,299 Mich. 574
• Decision Date: 02 December 1941
• Docket Number: No. 55.,55.
• Parties: MILLER et al. v. BRADWAY.
• Court: Supreme Court of Michigan

299 Mich. 574

300 N.W. 889

MILLER et al.

v.BRADWAY.

No. 55.

Supreme Court of Michigan.

Dec. 2, 1941.

Action on a note by Ralph C. Miller and others against Judson Bradway. From orders denying defendant's motion to quash the summons served upon him and dismissing the case and allowing amendments, the defendant appeals.

Orders affirmed, and cause remanded.

Appeal from Circuit Court, Wayne County; Arthur Webster, judge.

Argued before the Entire Bench.

John W. Hoag, Jr., of Detroit, for defendant-appellant.

Sigmund A. Robinson, of Detroit, for plaintiffs-appellees.

WIEST, Justice.

This is an appeal by defendant from denial of his motion to quash the summons served upon him and dismiss the case and from amendments allowed.

The facts are stated in the settled record as follows:

‘On the 14th day of August, 1940, a praecipe was filed with the clerk of the circuit court for the county of Wayne, requesting that a writ of summons issue in a cause entitled ‘Miller Bailey & Company, plaintiff, v. Judson Bradway, defendant’. A summons so entitled and advising Judson Bradway, the above named defendant and appellant, that a suit had been commenced against him by ‘Miller Bailey & Company, as plaintiff,’ was on the same day issued and served on the said defendant and appellant.

‘On the 20th day of August, 1940, a declaration was filed and a copy of the same subsequently served on the defendant and appellant, which declaration was similarly titled and set forth that the plaintiff was a co-partnership composed of Ralph C. Miller, James I. Bailey, John L. Busch, E. T. Stringer, R. W. Rannie and C. J. Lehman; that the action was brought on a certain promissory note for one thousand four hundred forty-six and 79/100 ($1446.79) dollars, executed and delivered by Judson Bradway to Miller Bailey & Company, May 15, 1934, and payable three months after date, August 15, 1934, which was six years less one day prior to the issuance of the above described summons.

‘The defendant and appellant appeared specially for the purpose of moving to quash the praecipe and summons and quash the service of process and dismiss the suit, in support of which motion the affidavit of Judson Bradway, the said defendant and appellant, was filed setting forth ‘that deponent did not know the nature of said Miller Bailey & Company, but had been advised that the same was a partnership, but if a partnership, deponent did not know who were the partners, deponent not having received any consideration for any note or notes executed in favor of Miller Bailey & Company, whoever they might be, but having executed said note or notes under threat of legal proceedings; that the said legal proceedings were without merit, but at that time the economic depression had given rise to extreme pressure on deponent from many sources and deponent signed said note or notes without regard to the merits of the claim of Miller Bailey & Company and without even knowing who composed said Miller Bailey & Company.’

‘Subsequently, but prior to the hearing of this motion, the plaintiff filed a motion to amend the title...