Sullivan v. Hall

• Decision Date: 08 May 1891
• Citation: 48 N.W. 646,86 Mich. 7
• Court: Michigan Supreme Court
• Parties: SULLIVAN v. HALL.

48 N.W. 646

86 Mich. 7

SULLIVAN v. HALL.

Supreme Court of Michigan

May 8, 1891

Error to circuit court, Clare county; HENRY HART, Judge.

C. W. Perry and Henry A. Chaney for appellant.

W. A. Burritt, for appellee.

LONG J.

This action was brought by attachment in justice court under Act No 229, Laws 1887, to enforce a lien upon certain logs of the defendant. On the trial plaintiff had judgment for $16 and costs of suit, and for a lien upon the logs. The cause was removed by certiorari to the circuit court for Clare county, where the judgment was affirmed. The cause comes to this court by writ of error. The errors complained of are set forth in the affidavit for the writ of certiorari to the justice, and are: "(1) That the notice of the lien was not properly sworn to as required by the act; (2) because no testimony was given on the trial tending to prove any agreement with defendant or any authorized agent of his, or any contractor under defendant, with plaintiff that he should do any work on said logs, and no proof that defendant or any agent of his or contractor under him knew that plaintiff was doing work on said logs; (3) because no testimony was offered of any contract with defendant or his agent for any specific wages, and no proof of how much his labor was worth; (4) because said justice gave judgment in said cause for an attorney fee of five dollars; (5) because the person who claimed to be the attorney for plaintiff, and was so recognized by said justice, undertook to administer the oath to plaintiff of the notice claiming lien against the property attached; (6) because the evidence given at the hearing of said cause did not warrant any of the findings or judgment of the court; (7) because no evidence was given tending to prove the property mentioned in said writ of attachment and in plaintiff's declaration are the same." There is no force in the objections made that there was no evidence tending to show the plaintiff's claim. The evidence was not reduced to writing, and is not returned. The justice, in his return, states that the plaintiff was sworn in his own behalf, and, after listening to the testimony, and after due deliberation, he gave judgment for the plaintiff. Under these circumstances we cannot presume that there was no evidence tending to support the judgment. The writ of attachment contains a description of the property attached, and the declaration contained the same description, and there is therefore no force in the seventh assignment of error. It is not shown that the notary public who administered the oath to the plaintiff on the statement of claim of lien was the attorney for the plaintiff at that time. The lien was sworn to and filed in the office of the county clerk, as provided by statute. The notary public who administered the oath thereto afterwards appeared in justice court as attorney for the plaintiff. This is not in violation of section 637, How. St and does not fall within the ruling of cases cited by defendant's counsel. The fourth assignment of error is not noticed in the brief of counsel, and will be treated as abandoned. The only remaining assignment of error is the first, which relates to the notice of lien. No objection is made to the statement except that the same does not show in what county the oath was administered. The claim of the lien is in the following form: "The statement of lien made under oath of Michael Sullivan in manufacturing, cutting skidding, the following described property, to-wit: One million feet of white pine, Norway pine, and hemlock saw-logs, marked as follows: That the last day's work of said labot was done on the 8th day of February, 1889, and said labor was performed in the county of Clare; and that said described property, or a portion of the same, is now situated in the county of Clare, state of Michigan; and that there is now due claimant for said work and labor over and above all legal set-offs the sum of $16, as near as may be for which said sum a lien is claimed upon said described property. MICHAEL SULLIVAN. Subscribed and sworn to before me this...