Van Benschoten v. Fales

• Decision Date: 26 March 1901
• Court: Michigan Supreme Court
• Parties: VAN BENSCHOTEN et al. v. FALES.

85 N.W. 476

126 Mich. 176

VAN BENSCHOTEN et al. v. FALES.

Supreme Court of Michigan

March 26, 1901

Error to circuit court, Ionia county; Frank D. M. Davis, Judge.

Action by Harvey L. Van Benschoten and another against Elmer E Fales. From a judgment in favor of the plaintiffs, defendant brings error. Reversed.

Charles L. Rarden (George E. & M. A. Nichols, of counsel), for appellant.

Morse &amp Locke, for appellees.

LONG J.

The defendant is a deputy sheriff for Ionia county, and on the 29th day of July, 1899, at the city of Belding, levied an attachment upon the goods in controversy in favor of Henry Stern and Gottleib Block, co-partners doing business under the firm name of Stern & Block, and against John V. Cahill and William Hudson, co-partners doing business at Belding Mich., under the firm name of Cahill & Hudson. The writ issued on the 27th day of July, 1899, and was made returnable on the 5th day of September following. A proper inventory and appraisal of the goods was made on the date of the levy. The affidavit for the writ recited that the names of the defendants in the attachment suit were George V. Cahill and William Hudson, and the writ was issued against George V. Cahill and William Hudson. After the issuance of the writ, the plaintiffs discovered that Cahill's name was not George V. Cahill, but was John V. Cahill. On the 12th day of September, 1899, the sheriff made his return to the writ, with the inventory and appraisal attached, which return showed that he had been unable to find either of the defendants, and that neither of them had been served with the writ. The next day the plaintiffs caused an alias writ to be sued out asainst John V. Cahill and William Hudson as co-partners, in which it was recited that John V. Cahill had been 'erroneously named in the original writ as George V. Cahill,' which writ was on the 18th day of September served upon William Hudson at the city of Greenville, Montcalm county. The service on Hudson was made by delivering to him a certified copy of the alias writ, and certified copy of the original writ, and affidavit, inventory, and appraisal, and the return of the officer to the original writ, and on the 4th day of October the sheriff made his return to the alias writ, with his doings thereunder. The plaintiffs in this case claimed the goods by virtue of two bills of sale, dated the 10th day of July, 1899, and the 5th day of July, 1899, and under that claim, on the 18th day of August, replevied the goods from defendant Fales, who was holding them by virtue of the writ of attachment; and afterwards, and on the 30th day of August, 1899, filed their declaration in this cause, to which the defendant pleaded the general issue, and gave notice thereunder that he would justify his possession by virtue of the writ of attachment. The case came on to be heard before the court at the city of Ionia on the 22d day of December, 1899, before a jury. The plaintiffs gave evidence tending to show their right of possession by virtue of their bills of sale, and rested. Then the defendant, to maintain his case, offered in evidence the writ of attachment, together with the inventory and affidavit, and the returns and proceedings of the officers had in the attachment case. To the introduction of the attachment proceedings, plaintiffs, by their attorney, made the following objections: (1) That there was no legal service made upon either of the defendants, and only an attempted service made upon Hudson, which was void because the court had no jurisdiction to issue an alias writ of attachment; (2) that the affidavit was defective because it did not allege that each defendant was guilty of the wrong charged; (3) that the affidavit was not sufficient to support a writ of attachment against John V. Cahill and William Hudson, co-partners, and no new affidavit was made, and the existing affidavit was not amendable; (4) that the court obtained no jurisdiction in the attachment suit, because it does not appear from the officer's return that he had attached the property of John V. Cahill and William Hudson. Counsel for defendant, Fales, thereupon moved to amend the writ and affidavit in the attachment case, changing the words 'George V. Cahill' to 'John V. Cahill.' This motion was denied, and the court directed the verdict in favor of plaintiffs upon the following grounds: (a) That the affidavit in the attachment case did not state with sufficient certainty that the wrong or fraud was committed by each of the individuals comprising such co-partnership; (b) that the misnomer of George V. Cahill for John V. Cahill in the affidavit for the writ of attachment could not be cured by amendment; (c) that there is no authority in law for the issuance of an alias writ of attachment.

It is conceded that the statute does not authorize the issuance of an alias writ of attachment, nor prohibit it; but counsel for defendant contends that the question is governed and controlled by circuit court rule 1, subd 'b,' which provides for the issuing of alias and...