People ex rel. Miller v. Judge of Circuit Court of Bay County

• Decision Date: 01 July 1879
• Citation: 2 N.W. 26,41 Mich. 326
• Court: Michigan Supreme Court
• Parties: PEOPLE ex rel. WILLIAM H. MILLER v. JUDGE OF THE CIRCUIT COURT FOR THE COUNTY OF BAY.

2 N.W. 26

41 Mich. 326

PEOPLE ex rel. WILLIAM H. MILLER v. JUDGE OF THE CIRCUIT COURT FOR THE COUNTY OF BAY.

Supreme Court of Michigan

July 1, 1879

An affidavit for attachment alleged that the defendants named, a copartnership under the firm name of (giving firm name), were indebted to the plaintiff in a certain sum named, over and above all legal set-offs, as near as may be, and as near as he can estimate, and that the sum is now due upon express contract. Held, sufficient.

A mandamus to compel the vacation of an interlocutory order improperly granted, is proper where there is no other adequate remedy.

Mandamus.

McDonnell & Mann, for relator.

Holmes, Collins & Stoddard, contra.

CAMPBELL, C.J.

Relator commenced suit against six defendants, two of whom were set forth as non-residents, and as against them an attachment was sued out and levied on the property of one of them, upon whose motion the attachment was quashed. Mandamus is asked for to vacate this order. The writ contained the usual summons clause against all the defendants, and only the attachment was quashed.

The only grounds now urged in support of the action of the circuit court are the insufficient allegations of joint indebtedness. The affidavit sets forth "that Sylvester Hale, Charles D. Hale, Charles H. Prescott, Thomas M. Hubbell, Alexander McRoberts and William C. Stevens, a copartnership under the firm name of the Lake Huron & South-western Railway Company, are indebted to him, said Miller, in the sum of $2,000, over and above all legal set-offs, as near as may be, and as near as he can estimate, and that the same is now due upon express contract.

It is objected that we have statutes relating to promissory notes and bills whereby parties who are not joint obligors may be united in one suit, and that this affidavit does not exclude the possibility of such a case.

We think the fair and natural meaning of the affidavit refers to a joint partnership debt, and that we cannot justly imagine any intendment contrary to this plain meaning. We think the affidavit was sufficient, and that it was erroneous to quash it.

As this is an interlocutory order, not touching the merits, a mandamus is the only adequate remedy to vacate it. The writ is granted, with costs.