Rowe v. Kellogg
| Decision Date | 18 June 1884 |
| Citation | 54 Mich. 206,19 N.W. 957 |
| Court | Michigan Supreme Court |
| Parties | ROWE v. KELLOGG and others. |
The proceeding to dissolve a writ of attachment is a special and peculiar statutory remedy which cannot be extended, and which can only avail a defendant whose interests are invaded, the statute being construed fairly, and not strictly.
A circuit judge at chambers, having simply the authority of a court commissioner, has no jurisdiction to dissolve a writ of attachment upon the petition of an assignee of the property for the benefit of creditors; but upon the petition of one of the defendants to the writ, whose property has been taken the dissolution of the writ is within his jurisdiction.
Where land belongs to a married woman, but is the family homestead the husband has a valuable and important right in it which the courts will protect.
Certiorari to Kalamazoo.
Dallas Boudeman, for plaintiff and appellant.
Edwards & Stewart, for defendants.
On the sixth of November, 1883, plaintiff levied an attachment on a considerable amount of real property belonging, or seized as belonging, to defendants. On the ninth of the same month defendants, who were partners, made a general assignment to Edwin J. Phelps and Edwin Byles. In February, 1884, two petitions were filed to dissolve the attachment,--one by the assignees, in their own name and behalf, to remove it from the assigned property, and one by Joseph E. Kellogg, to have it set aside as to his residence, which belonged to his wife but was occupied by the family. The only ground for suing out the writ was the belief, unsupported by any facts averred, that defendants intended to dispose of their property with intent to defraud creditors. These petitions were addressed to the Hon. Alfred J. Mills, circuit judge, who found as a fact that there was no showing which justified suing out the attachment. While we have no authority to review his conclusions on competent testimony, we may, nevertheless, properly say that, in our opinion, he was entirely correct in his inferences, and the plaintiff's case does not appear to be meritorious. The only question which we can determine on this proceeding in certiorari, brought to review his orders dissolving the attachment, is whether the petitioners had any standing to authorize them to apply for a dissolution.
The assignees applied in their own name and on their own behalf. We have no difficulty in seeing that they are interested in having the assigned property cleared of a lien which should not have been put upon it. We are not prepared to say the circuit court may not have some power to protect them, but on this record we can express no opinion except as to the legality of the present remedy. This is not a proceeding in court, but a collateral proceeding before the judge at chambers, whose powers are identical with those of a circuit court commissioner, and who, therefore, does not, on such an application, exercise the full judicial authority of the court itself. We have in several cases decided that this is a special and peculiar statutory remedy which cannot be extended beyond the statute, and which can only avail a defendant whose...
To continue reading
Request your trial