Schall v. Bly
| Decision Date | 28 April 1880 |
| Citation | 5 N.W. 651,43 Mich. 401 |
| Court | Michigan Supreme Court |
| Parties | SCHALL and another v. BLY. |
Where the actual possession of property attached remains in the debtor, he is not prevented from moving for a dissolution by the fact that later levies have been made. Same counsel may act for a party in one transaction and against him in another wholly distinct therefrom. The decision of a commissioner in dissolving an attachment held final. This court cannot review questions of fact.
Error to Cass.
Russell R. Pealer, for plaintiffs in error.
Howell & Carr, for defendant in error.
The circuit court quashed an order of the circuit court commissioner dissolving an attachment, sued out by Bly against Schall's property. The ground on which the writ was obtained was that they were about to dispose of their property with intent to defraud their creditors, and the property levied on consisted of land and growing wheat. The commissioner, in entertaining the proceedings, acted within his jurisdiction. The sufficiency of the application has not been questioned. There were later levies, by other parties on the land, and the point is made that this cut off the debtor's right to proceed for a dissolution. The objection is not valid. Neither levy operated to dispossess them, (Smith v. Collins, 41 Mich. 173,) and they were not bound to submit in silence to a levy which they considered as based on an untrue statement against their honor and good faith, merely because other persons had subsequently levied on the same property. As the actual possession continued in the debtor there was no question concerning restoration to interfere. Smith v. Collins, supra.
The circumstance that the same counsel who acted for the debtor before the commissioner was the attorney of the later creditors is of no importance. There is no law which hinders an attorney from appearing for a party in one transaction and against him in another wholly distinct from it, merely because a third person interested in the first takes exception.
Before the commissioner the case turned upon the facts, and he received all the evidence offered, and found as matter of fact that the creditor had not good and legal cause for suing out the writ. That the evidence produced was sufficient to call for the exercise of his judgment is very plain, and that being so his conclusion upon it is final.
It has been decided several times that this court...
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