People ex rel. Tracy v. Blanchard

• Decision Date: 10 June 1886
• Citation: 61 Mich. 478,28 N.W. 669
• Court: Michigan Supreme Court
• Parties: PEOPLE ex rel. TRACY v. BLANCHARD and others.

28 N.W. 669

61 Mich. 478

PEOPLE ex rel. TRACY v. BLANCHARD and others.

Supreme Court of Michigan

June 10, 1886

Error to Roscommon.

H.H. Woodruff and Edget & Brooks, for plaintiff.

Delano & Bunker, for defendants and appellants.

SHERWOOD J.

On the fifteenth day of March, 1883, John Tracy sued out a writ of attachment from the circuit court for the county of Roscommon, against the goods and chattels of John Mahoney based upon the following affidavit:

"State of Michigan, County of Roscommon--ss.: John Tracy, of Roscommon village, in the county of Roscommon and state of Michigan, being duly sworn, deposes and says that he is the plaintiff named in the annexed writ of attachment; that John Mahoney, the defendant named in the said writ, is justly indebted to him in the sum of twenty-two hundred dollars, as near as may be, over and above all legal set-offs, and that the same is now due and upon contract. And this deponent further says that the deponent knows that the said John Mahoney has assigned his property with the intent to defraud his creditors. JOHN TRACY."

The writ issued in the case was executed by the defendant Charles Blanchard, who was sheriff of the county at the time, by attaching and taking into his possession stock and goods of the appraised value of $5,429.16. Subsequently John Tracy recovered a judgment against Mahoney in the attachment suit for the sum of $2,241.38 damages, and $31.50 costs. Execution was issued on this judgment, and on the fourth day of March 1884, it was returned unsatisfied. Atherton & Co. were the assignees of a chattel mortgage covering a portion of the attached property, amounting to $2,144.35, and were creditors of John Mahoney. On the eighth day of April, 1883, the sheriff delivered to Atherton & Co. the property remaining in his hands under and by virtue of the writ of attachment; the firm having given him a bond of indemnity. The sheriff failing to produce the property attached to satisfy the judgment of Tracy against Mahoney, the plaintiff brought this action against him and his bondsmen. The cause was tried before the circuit judge without a jury, and the plaintiff was allowed to recover. The cause was tried, on the part of the defendants, upon the theory that the affidavit for the writ of attachment in the case of Tracy against Mahoney, was fatally defective and void, and gave no jurisdiction to issue the writ, and that the sheriff never acquired...