Somers v. Losey
| Decision Date | 25 April 1882 |
| Court | Michigan Supreme Court |
| Parties | SOMERS v. LOSEY and another. |
Where a plaintiff has actually sued a defendant in a justice's court, and recovered judgment, such judgment cannot be collaterally attacked.
Where there is a direct conflict of testimouy as to the ownership of a promissory note on a particular date, and the question was fairly submitted to the jury, judgment will be affirmed.
Error to Wayne.
Stewart & Galloway, for plaintiff and appellant.
Wilkinson Post & Wilkinson, for defendants.
Mrs Somers sued defendants as joint makers of a note for $145 dated February 17, 1879, and payable in "one or two years after date with 10 per cent. interest to Joseph Somers or bearer," said Joseph being her husband.
Defendants claimed and were allowed at the circuit a reduction of $47.95, by reason of garnishee proceedings in which they paid the amount on a justice's judgment against the husband. As this is the only reduction made in their favor, all the questions we are required to consider depend upon the effect of the garnishee action.
On the eighth of May, 1880, a judgment was recovered by James Ford township treasurer of the township of Dearborn in Wayne county against Somers, which from the docket recitals appears to have been for unpaid personal taxes. This judgment was rendered regularly on personal service and appearance and plea.
On the fifteenth of February, 1881, a garnishee summons was sworn out under this judgment against the defendants in this suit. On the twenty-fifth day of February they made their disclosure of indebtedness on the note in the suit here. The court reserved decision until March 1st, when a formal judgment was rendered against them. On the eighth of May, 1881, they paid the amount to the justice. This was after the present suit was brought, but before plea. The defence was properly pleaded.
The plaintiff claims that this garnishee payment was unauthorized and not binding on her, because she was owner of the paper before maturity and at the time of the garnishment, and also because, as she insists the judgment and garnishee proceedings were both void. The objections to the judgment is that the suit was not brought in the proper name, or in the proper way to collect delinquent taxes. It is sufficient to say that there being a plaintiff who has actually sued, and a defendant who has been cast in a judgment from which he has not appealed,...
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