Smith v. Runnells

• Decision Date: 17 February 1893
• Citation: 54 N.W. 375,94 Mich. 617
• Court: Michigan Supreme Court
• Parties: SMITH v. RUNNELLS, Sheriff.

54 N.W. 375

94 Mich. 617

SMITH v. RUNNELLS, Sheriff.

Supreme Court of Michigan

February 17, 1893

Error to circuit court, Newaygo county; John H. Palmer, Judge.

Trover by Hiram V. Smith against Allick G. Runnells, as sheriff, for the value of certain mill machinery. From a judgment for plaintiff, defendant brings error. Reversed.

Dumon &amp Cogger and M. Brown, for appellant.

Smiley Smith & Stevens, for appellee.

HOOKER C.J.

The plaintiff, claiming to be the owner by purchase from Robinson & Blodgett, copartners, of certain mill machinery, brings trover for its conversion. The defendant attempts to justify his conversion by virtue of his office of sheriff, having sold the goods upon an execution. Upon the trial he offered in evidence the files and entries in the case wherein the execution issued, which proof was excluded by the trial court upon plaintiff's objection. The propriety of this ruling is the only question raised by the record. That action was begun by attachment, and the affidavit is said to be defective in that the notary before whom it was sworn did not append to his signature to the jurat the name of the county for which he was appointed, and it did not appear in the body of the affidavit. The caption of the affidavit contains the name of the county, and leads to the plain inference that the notary was an officer in and for such county. See Wright v. Wilson, 17 Mich. 203. The attachment issued against Robinson & Blodgett and the Union Tie Company. The sheriff made a return on December 3 1889, stating that he had that day "seized certain property." He did not state whose property it was, but did return that it was "located in Robinson &amp Blodgett's mill." January 8, 1890, the defendant, as sheriff, made another return respecting the seizure of the property, and stating that on December 4, 1889, at Woodville, in Newaygo county, he served personally upon Charies E. Robinson a copy of the writ and of the inventories, all duly certified, and that on December 5th he served personally copies of the same papers, duly certified, upon one Capt. Blend, who claimed to be the agent of J. D. Bancroft, or what was left of the Union Tie Company, Chicago. He further returned that "after diligent search and inquiring he had been unable to find within the county either Silas Blodgett, one of the defendants, or any of the officers of the Union Tie Company of Chicago, and for that reason he had made no service upon either Blodgett or the tie company." On April 21, 1890, a further return appears to have been made, which stated, in addition to the other facts, above recited, "that he showed to Blodgett, at the time of service, the original writ." So far as Robinson is concerned, the return of December 3d shows the seizure of the property, and that of January 8th personal service.

None of the returns show that the property belonged to Robinson &amp Blodgett. Perhaps the officer could not safely so certify, but he does say that he found it in their mill. But, if it were necessary that the return should show the ownership,...