Steere v. Vanderberg

• Decision Date: 10 November 1887
• Citation: 35 N.W. 110,67 Mich. 530
• Court: Michigan Supreme Court
• Parties: STEERE and others v. VANDERBERG.

35 N.W. 110

67 Mich. 530

STEERE and others v. VANDERBERG.

Supreme Court of Michigan

November 10, 1887

Error to circuit court, Montcalm county.

Wm. O Webster, (S.G. Millard, of counsel,) for plaintiffs appellants.

Mitchel & McGarry, for defendant.

CHAMPLIN J.

In this case the writ of replevin issued by the plaintiffs was quashed, and the cause came on to be heard in the court below for the purpose of assessing the value of the property taken upon the writ. Testimony was taken therein and upon request of plaintiff the circuit court filed special findings of fact and law as follows:

"First. In September, 1884, one George C.W. Richards was engaged in the drug business at Sheridan, Michigan, and had in his possession, and owned the same, a stock of drugs and medicines.

"Second. September 5, 1884, Hazelton, Perkins & Co., in the names of the different members of the firm, commenced suit against said Richards by attachment, alleging in the affidavit that Richards had absconded from the state with intent to defraud his creditors, and that he had assigned his property with the like intent, and a writ of attachment was duly issued on the same day, returnable September 12, 1884. The writ was returned not served on the return-day, but showing a seizure of the property in question in this suit--the drugs and medicines. Notice of attachment was duly and regularly published for six successive weeks, and on the twenty-ninth day of November affidavit of publication was filed. The declaration was filed in the case November 21, 1884. On the same day that affidavit of publication was filed, being November 29, 1884, the defendant's default was entered and the same made absolute December 2, 1884. On the third of December, 1884 judgment was rendered against defendant Richards for $544.18. Dec. 5, 1884, costs taxed at $39.50, and execution was issued Dec. 5, 1884, returnable December 20th, on which the following return appears:

" 'By virtue of the annexed execution, to me directed, I levied on the goods and chattels of the defendant therein named as described to me in the notice annexed to said writ, and after advertising the same for sale as required by law, I did, at the time and place appointed in the notice of sale, expose said goods and chattels for sale at public auction or vendue, and at said sale several persons were in attendance, and several different persons bid therefor;

that the same was sold and duly struck off to M.J. Summers for the sum of thirteen hundred and fifty dollars. I further certify and return that I have paid the attorney for the within named plaintiffs the full amount of the damages and costs herein, and taken his receipt therefor.

" 'Dated December 20, 1884. J.A. SUMMERS, Under-Sheriff.'

"Third. On the eighteenth of September, 1884, suit was commenced against said Richards by attachment for the sum of $______, in favor of Hinchman et al., as plaintiffs, and the writ issued and made returnable October 7, 1884, on which day it was returned showing that the defendant's property was attached, but no personal service had because the defendant could not be found. The affidavit, notice of attachment, proof of publication, filing of declaration, entry of default, default absolute, rendition of judgment, issuance and return of execution, were substantially the same as in the case of Hazeltine, Perkins & Co. against Richards.

"Fourth. On the twelfth of September, 1884, another suit was commenced by attachment in favor of Barnes et al., and against said Richards, in which like proceedings in the case last above mentioned were had and taken.

"Fifth. On the thirteenth of September another suit was commenced by attachment in favor of Courtlander et al. against said Richards for the sum of over one hundred dollars, in which the subsequent proceedings were the same as in the case of Hinchman et al. v. Geo. C.W. Richards.

"Sixth. Each suit was commenced by affidavit against Richards as an absconding debtor and were substantially the same.

"Seventh. The executions issued in the several attachment suits having been levied on the said stock of goods, and the judgments therein amounting to $1,350, the property, after being duly advertised, was offered for sale by said under-sheriff, and bids made thereon. The sale was held open until afternoon, and during this time an agreement was entered into between Mr. Griswold, representing the attachment creditors, the agent of Hinchman & Sons, one of said creditors, whose execution was the last one levied, and Mr. M.J. Summers; that Summers should bid on the goods $1,350, and if no person bid more they should be struck off to him; that Hinchman & Sons would pay the amount due the prior attaching creditors in cash, and give Summers time to pay for the goods, taking his notes indorsed by his father and also secured by chattel mortgage on the goods for the full amount of $1,350. When the sale was again opened in the afternoon, Mr. Griswold, at the request of Summers, made the bid of $1,350, and, there being no higher bid made, the goods were struck off on that bid. Subsequently the notes and mortgage were executed by Summers to Hinchman & Sons for the price bid, $1,350, and Mr. Griswold took them to Detroit to close the matter up with Hinchman & Sons, but owing to some misunderstanding they declined to accept the same and pay the other attaching creditors. When notified of this fact, Summers not being in a situation to pay the money, and by an agreement between Griswold acting for the attaching creditors, Mr. M.J. Summers and the defendant in the case, the goods were delivered to the defendant, the notes and mortgage delivered up to Summers, and the defendant paid in cash to Griswold $900 for the same, and Mr. Griswold, as attorney for the plaintiffs in the attachment suits, receipted the judgments and executions to the sum and amount of $1,350, the amount at which they were struck off to Summers.

"Eighth. Immediately after Jacob Vanderberg purchased the stock of goods, he put an agent in charge and commenced selling the same at retail. He also purchased some goods which he added to the stock. The amounts so sold and purchased were about equal. In this manner he was carrying on the business when the writ of replevin in the present case was served, and the property in question seized upon the writ and delivered to the plaintiffs.

"Ninth. On the thirtieth day of January, 1885, the plaintiffs instituted this suit. Mr. Vanderberg was made sole defendant. The stock of goods, as above stated, was seized and delivered to the plaintiffs, who subsequently sold and disposed of it. No personal service was ever had, though several alias writs were issued. Upon motion of defendant's attorneys the writ was dismissed, and the suit ordered to stand on the assessment of value. Upon this issue testimony was taken on the part of the defendant.

"Tenth. The plaintiffs, who are attorneys at law, claim title...