Montgomery v. Martin

• Decision Date: 19 March 1895
• Citation: 62 N.W. 578,104 Mich. 390
• Court: Michigan Supreme Court
• Parties: MONTGOMERY ET AL. v. MARTIN ET AL.

62 N.W. 578

104 Mich. 390

MONTGOMERY ET AL. v. MARTIN ET AL.

Supreme Court of Michigan

March 19, 1895

Error to circuit court, Wayne county; Joseph W. Donovan, Judge.

Action by William R. Montgomery and Franklin L. Lord, copartners as Montgomery & Lord, against Harry A. Martin and others. From a judgment for plaintiffs, defendants bring error. Reversed.

James Swan, for appellants.

Franklin L. Lord, for appellees.

HOOKER J.

Martin was a constable, having given the statutory bond of $2,000. He collected $135.11 and costs, amounting in all to $144.50 from one Haggerty. At the time, he had in his hands an execution in the case of Nelson & Moorey vs. Haggerty for $133.61 damages and $1.50 costs. At the same time he had in his possession an execution against Nelson & Moorey ads Wheeling Coal Company. He also had what he calls a "body execution" against Haggerty, garnishee of Nelson &amp Moorey ads, the Wheeling Coal Company. These last two writs are not shown by the record, but it seems to be conceded that the "body execution" was an attachment against Haggerty for not appearing in obedience to a garnishee summons. It appears that the money was collected upon the execution first mentioned. Defendant Martin says that he took the money to the justice, who refused to accept it, and that the execution was never returned, or the money paid over to any one. Montgomery & Lord, the plaintiffs, are lawyers, who procured the judgment in the case of Nelson &amp Moorey vs. Haggerty. They base their claim in this action upon an assignment reading as follows: "For a valuable consideration, to me in hand paid by Montgomery & Lord, attorneys at law, the receipt whereof I hereby acknowledge, I, Alexander Nelson, of Detroit, do hereby assign, sell, transfer, and set over to the said Montgomery & Lord all my right, title, and interest in or to the claim now owing to me from H. H. Haggerty, and now in litigation in the justice's court of the city of Detroit, before Justice John B. Teagan, with full power to sue for and collect the same. Detroit, Michigan. [Sgd.] Alexander Nelson. [L. S.]" They contend that they were entitled to the amount collected, and to bring an action under the following section of How. Ann. St. � 6988: "If a constable shall neglect or refuse to return an execution, and pay over the moneys by him collected, within five days after such execution shall have been paid, or shall neglect to levy an execution, or otherwise execute the same according to law, the party in whose favor such execution was issued, or who shall be entitled to such moneys, may maintain an action of assumpsit, in his own name, upon the instrument of security given by such constable and his sureties; and in such suit the amount of the execution, with interest from the time of the rendition of the judgment upon which the same was issued, shall be recovered; and execution shall issue forthwith, and no stay of execution shall be allowed."

The first contention is based upon the proposition that jurisdiction depends upon the amount of the bond, and that How. Ann. St. � 6820, limits the jurisdiction of the justice to bonds not exceeding $150, and the decisions under it. This overlooks section 6988, which provides for an action of assumpsit upon a constable's bond in behalf of the person entitled to moneys which the constable refuses or neglects to pay. It authorizes a judgment for the amount with interest and costs. In this it differs from cases arising upon probate bonds, where the judgment is taken for the amount of the penalty of the bond, scire facias being resorted to on further breaches. Probate Judge v. Dean, 52 Mich. 387, 18 N.W. 118. The case of Gray v. Stafford, 52 Mich. 497, 18 N.W. 235, sustained a judgment rendered...