Tower v. Welker

• Decision Date: 27 October 1892
• Citation: 53 N.W. 527,93 Mich. 332
• Court: Michigan Supreme Court
• Parties: TOWER v. WELKER, Sheriff, et al.

53 N.W. 527

93 Mich. 332

TOWER v. WELKER, Sheriff, et al.

Supreme Court of Michigan

October 27, 1892

Error to circuit court, Jonia county; ROLLIN H. PERSON, Judge.

Action by Sarah J. Tower against Hamilton R. Welker, as sheriff, and Alexander T. Montgomery, as deputy sheriff, to replevy a stock of goods levied on as the property of Fred A. Tower. From a judgment for plaintiff, defendants bring error. Affirmed.

Clute & Clute, Wm. O. Webster, and F. C Miller, for appellants.

F D. M. Davis, T. F. McGarry, and Wm. F. McKnight, for appellee.

DURAND J.

This is an action of replevin, brought against the defendants to recover a stock of goods and merchandise, consisting mostly of groceries, provisions, store fixtures, and furniture, then in the Tower block in the city of Ionia. The facts necessary to be stated are these: One Fred A. Tower, being the owner of the property now in controversy, and being justly indebted to Sarah J. Tower, the plaintiff, in the sum of $2,000, for money loaned to him by her, did on April 7, 1890, execute and deliver to her a chattel mortgage on the same, to secure the payment of the indebtedness above mentioned. This chattel mortgage is in the usual form, and no contention is raised either as to the indebtedness or the form of the mortgage. On April 14, 1890, she filed the mortgage in the office of the city clerk of the city of Ionia. On April 15, 1891, no part of said mortgage indebtedness having been paid, she went to the office of said city clerk for the purpose of making and filing the usual renewal affidavits required by law, and found the office in charge of one Charles Girard, who was then acting as, and claiming to be, deputy city clerk; the city clerk himself then being absent. Upon making her business known, the said Girard, as deputy city clerk, then and there swore her to the affidavit, which was in the usual form prescribed by law in such cases, and, as such officer, annexed the same to the mortgage, and filed it in said office. On July 25, 1891, executions issued upon judgments against the mortgagor, Fred A. Tower, amounting to up wards of $1,000, were placed in the hands of the defendant Montgomery, then a deputy sheriff of said county, who, by virtue thereof, levied upon the property in question, and took possession of it, in denial of plaintiff's right as mortgagee, and upon the claim that her mortgage had not been properly renewed, and was therefore void as against the judgment creditors represented in the executions. The plaintiff thereupon insisted upon the recognition of her rights as mortgagee, and, upon this being refused, she brought this action against the defendants, Welker, as sheriff, and Montgomery, as the deputy sheriff, having the property in his possession. Upon the trial in the circuit court without a jury the judge found for the plaintiff, and the defendants claim error.

The point of contention raised by defendants is that the affidavit of renewal is void, upon the ground that Charles Girard, as deputy city clerk of the city of Ionia was not an officer having authority to administer an oath. We do not agree with the defendants in this position. Section 18 of the charter of the city of Ionia, as passed in 1873 and amended in 1889, contains the following: "The clerk of said city shall have all powers and duties of township clerks, in addition to the other duties hereby imposed upon him. * * * He is hereby authorized and empowered generally to administer oaths and take affidavits." Among the powers of a township clerk is that of appointing a deputy, who shall take an oath of office, and file the same with the clerk; and, in case of the absence, sickness, death, or disability of the clerk, such deputy shall perform the duties of such clerk. 1 How. St. � 743. We therefore have no hesitation in saying that under these provisions the city clerk of Ionia had a right to appoint a deputy, who, upon the happening of either of the contingencies named, had the right to perform all the duties which the clerk himself could legally perform. The defendants contend that, even if the clerk has this power to appoint, yet that the deputy appointed would only have the right to perform such duties as appertain to township clerks, but without the enlarged rights conferred upon the city clerk to administer oaths and take affidavits. We think this much too narrow a construction to place...