Sutherland v. Burrill

• Decision Date: 02 July 1890
• Citation: Sutherland v. Burrill, 82 Mich. 13, 45 N.W. 1122 (Mich. 1890)
• Court: Michigan Supreme Court
• Parties: SUTHERLAND v. BURRILL et al.

45 N.W. 1122

82 Mich. 13

SUTHERLAND v. BURRILL et al.

Supreme Court of Michigan

July 2, 1890

Error to circuit court, Saginaw county; C. H. GAGE, Judge.

Wheeler, McKnight & Grant, for appellant.

Tarsney & Weadock, for appellees.

CAHILL J.

The plaintiff, having an uncollected judgment against Frank Wilcox for $208.60, commenced garnishee proceedings against Samuel S. Burrill and Walter O. Burrill before J. W. THORN, a justice of the peace of Saginaw county. On the return-day of the summons, Samuel S. Burrill, one of the garnishee defendants, appeared, and made and subscribed a disclosure under oath as follows: "I am one of the garnishee defendants. Walter O. Burrill and myself are copartners. Some time last winter, we employed Frank Wilcox to saw some lumber for us. We were to pay him three dollars per thousand feet. He had sawed some fifty thousand feet for us. We have paid Frank Wilcox fifty dollars to wards the work as saw-bill. We still owe on the sawing of the lumber the sum of one hundred dollars. I made the bargain for sawing the lumber with Mr. Wilcox, and paid him fifty dollars on the contract. I have had nothing to do with any person but Wilcox in this transaction. Wilcox was running the mill, and this was all the money, property, or effects in our hands, or under our control, belonging to the said Frank Wilcox. And further this deponent saith not. SAMUEL S. BURRILL. Subscribed and sworn to before me this 22d day May, 1889. J W. THORN, Justice of the Peace." Thereupon a summons issued, directed to the garnishee defendants, requiring them to appear before the same justice on the 29th of May, 1889 at 1 o'clock in the afternoon, then and there to show cause why judgment should not be rendered against them as garnishee defendants in the suit of Sutherland v. Wilcox. On the 29th day of May, parties appeared in person and by attorneys. Plaintiff declared orally against the defendant on the common counts in assumpsit and in trover. Defendant pleaded the general issue, and gave notice that on the trial they would show that the money stated in the disclosure owing to Wilcox was in fact owing to Melville G Gardner, and that such disclosure was made under a mistake of fact. By consent of both parties the case was adjourned from time to time to July 11, 1889, at which time the parties, being present, proceeded to trial. Plaintiff offered in evidence the docket entries of the judgment against Wilcox, also the disclosure of the garnishee defendants signed by Samuel S. Burrill. Judgment was rendered by the justice in favor of the plaintiff, and against the defendant, for $96 damages and $4 costs. The case was taken by the defendant to the circuit ...