Toth v. Toth

• Decision Date: 14 February 1928
• Docket Number: No. 38.,38.
• Parties: TOTH v. TOTH.
• Court: Michigan Supreme Court

242 Mich. 23

217 N.W. 913

TOTH

v.TOTH.

No. 38.

Supreme Court of Michigan.

Feb. 14, 1928.

Appeal form Circuit Court, Genesee County, in Chancery; Edward D. Black, Judge.

Suit by Rose Toth against Ignatz Toth, in which plaintiff, after a decree granting her a divorce, alimony, and other allowances, filed an affidavit for a writ of garnishment against the Wayne County & Home Savings Bank. Defendant's petition to set aside an order directing garnishee to pay plaintiff a certain amount, modify the original decree, order restitution of such sum, and restrain disposition thereof, was denied, and the restraining order dissolved, and defendant appeals. Order set aside, and cause remanded.

Argued before the Entire Bench.

Henry Stone, of Detroit, for appellant.

Harry Cohen, of Detroit, for appellee.

Henry F. Massnick, of Detroit, for garnishee defendant.

CLARK, J.

In 1915, in the Genesee circuit, plaintiff was granted divorce from defendant. Alimony and allowance were decreed as follows:

‘It is further ordered, adjudged, and decreed that defendant pay to complainant $100 in lieu of dower, payable $10 monthly in advance from October 1, 1915; also that defendant pay complainant $3 weekly in advance for the support of their minor child until said child attains the age of fourteen years, and that complainant recover from defendant her costs, including attorney fees of $25, and that she have execution therefor. All of said payments to be made to the register of this court.’

It is not necessary to consider a seeming conflict in the above respecting the person to whom payments were to be made.

On March 2, 1927, plaintiff filed in said court on the law side an ‘affidavit for writ of garnishment after judgment’ in usual form, reciting, in substance, that of moneys so ordered to be paid by the decree there was due and unpaid the sum of $1,900 over and above all legal set-offs, and that Wayne County & Home Savings Bank, a Michigan corporation, had money, etc., in its hands belonging to defendant.

A writ of garnishment was issued and served on the bank, and it filed disclosure showing indebtedness to defendant in the sum of $1,215.41. On April 12, 1927, plaintiff served notice on counsel for the bank, garnishee defendant, of intention to move for judgment against it, and notice of the motion was waived. On the same day, and on the chancery side of the court, and in the cause in chancery, an order was made directing the bank to turn over to plaintiff or her attorney the said sum of $1,215.41, which, it is said, the bank did. With respect to the principal defendant these proceedings were ex parte. On May 7, 1927, he filed in the cause a petition to set aside the said order of April 12, and to modify the original decree, alleging that he had fully paid and satisfied the original decree, praying that the plaintiff and her attorney be ordered to make restitution of the sum of $1,215.41, and for order restraining them from disposing of the money. The restraining order was made. On May 11 the petition was heard and denied, and the restraining order was dissolved. Defendant has appealed.

The bank, granishee defendant, was not a party to the petition and proceeding to set aside the order by which it was directed to pay said sum to plaintiff or her attorney, and under and by virtue of which order it made payment, and no relief against it was prayed, and it is not before this court. Whether plaintiff or her attorney has the money paid by the bank does not appear. In legal effect, the payment was made to the plaintiff. It is apparent that defendant does not seek merely a money decree against the plaintiff, his former wife, for the sum paid. He seeks restoration of the money upon peremptory order against plaintiff, her attorney, and the bank. On the confused and unsatisfactory state of the record we will make no order or decree, except as hereinafter stated.

The garnishment proceedings and the order to the bank therein are void, and are open to collateral attack. The court was without jurisdiction. Nixon v. Wright, 146 Mich. 231, 109 N. W. 274,10 Ann. Cas. 547. Garnishment is a statutory remedy, and the statute must be followed strictly. Stevens Mich. Prac. p. 138....