Taylor v. Smith
| Decision Date | 03 October 1955 |
| Docket Number | No. 160,160 |
| Citation | 72 N.W.2d 146,343 Mich. 440 |
| Parties | Francis M. TAYLOR, Plaintiff, v. Raymond L. SMITH, Circuit Judge of the 20th Judicial Circuit, Defendant. |
| Court | Michigan Supreme Court |
Boeschenstein, Lidke & Sanford, Muskegon, for plaintiff.
Howard W. Fant, Grand Haven, for defendant.
Before the Entire Bench, except SMITH, J.
This is a petition for a writ of mandamus following an order denying plaintiff's motion to quash service of the body executions issued against him. The facts are not in dispute and are as follows: Plaintiff was arrested and convicted of embezzlement from Carl Berg and sentenced for a term to Southern Michigan Prison at Jackson. On April 23, 1953, a decree was entered in the amount of $26,169.67 plus costs and interest against plaintiff. The decree provided that in case of default of payment Carl Berg would have execution thereof. On November 1, 1954, plaintiff was to be released on parole, but prior to his release the circuit judge of Ottawa county authorized the issuance of two body executions, one to the sheriff of Jackson county and one to the sheriff of Ottawa county.
Pursuant to the body execution issued to the sheriff of Jackson county, plaintiff was apprehended in Jackson county and placed in the county jail in Jackson county. On November 1, 1954, plaintiff was returned to Ottawa county by an under sheriff of Ottawa county and placed in the Ottawa county jail.
A return to the body execution issued to the sheriff of Jackson county was executed by a deputy sheriff of said county dated November 1, 1954, showing the taking and custody of the body of Francis M. Taylor. A return to the body execution issued to the sheriff of Ottawa county was executed by an under sheriff of said county dated November 1, 1954, showing the taking and custody of the body of Francis M. Taylor. Both returns were filed in the cause of Carl Berg against Francis M. Taylor on November 4, 1954.
On January 13, 1955, plaintiff filed a petition in the Supreme Court for a writ of mandamus directing the circuit judge of Ottawa county to quash service of the body executions. Upon the filing of the above petition we issued an order to show cause directed to the circuit judge. On March 22, 1955, the circuit judge filed an answer to the above petition in which we find the following:
'(1) That mandamus is not the proper action for review of the order of the court denying petitioner's motion to quash service of the body executions in the instant case.
'(2) That if mandamus be held to be the proper action, petitioner has not properly complied with the provisions of Michigan Court Rule 60 in that the matter here involved is in the nature of appeal and petitioner failed to first obtain leave to appeal in the nature of mandamus and there has been no application in proper form in accordance with the provisions of Rule 60.
'(3) That petitioner has no clear legal right to the relief sought and there is no clear legal duty on the part of the Defendant to perform the act sought to be compelled.
'(4) That petitioner has not been denied any substantial right in the service of the body executions issued by the Circuit Court for the County of Ottawa as would entitle him to a writ of mandamus.'
The statute involved is C.L.1948, § 623.10, Stat.Ann. § 27.1510, which reads as follows:
'Executions, whether against the property of any person, or against the body of any person, for the collection of judgments and decrees of courts of record in this state, may be issued at the same time to sheriffs of different counties and enforced therein by them, but no execution against the body of any person shall issue, while there is an execution against his property not returned, nor shall an execution against the property of any person be issued while there is an execution against his body unreturned, unless by order of the court rendering such judgment or decree.'
Plaintiff urges that an under sheriff of Ottawa county had no right to take the body of plaintiff in Jackson county and imprison him in Ottawa county. Plaintiff relies on Higgins v. Hampshire Products, Inc., 319 Mich. 674, 30 N.W.2d 390, 175 A.L.R. 1083, where we held that a sheriff has no jurisdiction to serve process outside the limits of his own county unless specially authorized to do so. The facts and law involved in the above case are not controlling of the issue in the case at bar. Under the above act the circuit judge was authorized to issue body executions against plaintiff in both Ottawa and Jackson counties. We note that the above statute is silent as to how the body of...
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