Webster v. Bennett
| Decision Date | 04 September 1929 |
| Docket Number | No. 48.,48. |
| Citation | 247 Mich. 616,226 N.W. 684 |
| Parties | WEBSTER et al. v. BENNETT. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Wayne County; Fred S. Lamb, Judge.
Action by Amos G. Webster and another against John Bennett. To review an adverse judgment, plaintiffs bring error. Affirmed.
Argued before the Entire Bench.
Wiest, Clark, and Sharpe, JJ., dissenting. Wallace Visscher, of Detroit (Chester J. Morse, of Detroit, of counsel), for appellants.
Harry J. Lippman, of Detroit, for appellee.
Plaintiffs recovered judgment against defendant for $915 and costs. A writ of garnishment was issued against several garnishee defendants. Service of the writ of garnishment was made by a person of suitable age and discretion, not an officer. The garnishee defendants appeared and disclosed. The principal defendant made a motion to quash the garnishee proceedings, because the writ of garnishment was not properly served. This motion was granted, and plaintiffs bring error.
The only question involved is thus stated by appellants: ‘May a person of suitable age and discretion, who is not a sheriff or deputy sheriff, not a person specially deputized by the court, make valid service of a writ of garnishment issued out of a court of record in this state?’
Section 13122, C. L. 1915, provides that writs of garnishment from courts of record, served within the county where the principal suit is brought, shall be directed to the sheriff, ‘commanding said sheriff to summon such person.’
Section 13157, C. L. 1915, applying to the service of writs of garnishment on garnishee defendants resident outside the county where the principal suit is commenced, provides such writs ‘may be served by any competent person.’
Section 12425, C. L. 1915, provides: ‘All civil process at law, or in equity, issued from any court of record, except process requiring the arrest of any person, or the seizure of property, may be served by any person of suitable age and discretion.’
Process requiring the arrest of any person is process that commands restraint of the person, Hart v. Flynn's Executors, 8 Dana (Ky.) 190; such as a capias ad respondendum. Seizure of property is a taking of such property into possession, exercising dominion or control of it, excluding others from its possession. 35 Cyc. 1372; Bouvier's Law Dict. title ‘Seizure.’ The writ of garnishment is not now, nor has it ever been, civil process requiring either the arrest of any person or the seizure of property. It is civil process at law, not included in the exceptions specifically mentioned in section 12425, C. L. 1915, and may be served by any person of suitable age and discretion, unless the specific language in section 13122, C. L. 1915, above quoted, is to be construed as a further exception to the inclusive language of section 12425, C. L. 1915.
‘When a general intention is expressed, and also a particular intention, which is incompatible with the...
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Burr v. Heffner
...1702.' Does the phrase ‘sue-and-be-sued’ include a writ of garnishment? A writ of garnishment is a civil process at law, Webster v. Bennett, 247 Mich. 616, 226 N.W. 684, in the nature of an equitable attachment, Posselius v. First Nat'l Bank, 264 Mich. 687, 251 N.W. 429, 90 A.L.R. 342. See,......