Young v. Morrall
| Decision Date | 26 February 1960 |
| Docket Number | No. 77,77 |
| Citation | 359 Mich. 180,101 N.W.2d 358 |
| Parties | Beatrice Ruth YOUNG, Special Administratrix of the Estate of James C. Young, Deceased, Plaintiff and Appellee, v. Olga Nina MORRALL, Defendant, and Michigan Surety Company, a Michigan Insurance corporation, Garnishee Defendant and Appellant. |
| Court | Michigan Supreme Court |
Clayton F. Jennings, Lansing, for garnishee defendant and appellant.
Boeschenstein, Lidke & Sanford, Muskegon, for plaintiff and appellee.
Before the Entire Bench.
Plaintiff, special administratrix of the estate of James C. Young, deceased, commenced suit to recover damages from the principal defendant for the death of plaintiff's decedent. Suit was instituted by attachment against the property of principal defendant, but no personal service was obtained. However, such principal defendant appeared specially by her attorney, seeking a dissolution of the writ of attachment. An order was entered dissolving the writ. An amended declaration seeking to recover damages from the principal defendant by reason of such defendant having negligently and carelessly caused the death of plaintiff's decedent was filed. The attorney for the principal defendant entered a general appearance and an answer. Later the appearance and answer were withdrawn.
Default judgment in the amount of $11,500 was entered in said case in favor of plaintiff and against the principal defendant under date of April 23, 1959, based on count 2 of the amended declaration. This amended declaration alleged under paragraph 4 thereof as follows:
In addition the amended declaration alleged that by reason of careless and negligent conduct on the part of defendant, said gun was discharged, striking plaintiff's decedent. It alleged the exercise of due care for his safety and freedom from contributory negligence on the part of plaintiff's decedent. It also alleged the injuries resulted in the death of plaintiff's decedent on November 28, 1958. The amended declaration further alleged loss of support for the widow and 2 children, medical, hospital, funeral and burial expenses, and loss of earnings, and claimed a judgment in the amount of $20,000.
Following entry of the judgment a writ of garnishment was issued out of the circuit court for the county of Muskegon against the Michigan Surety Company, affiant claiming that Michigan Surety Company, by virtue of policy number ML9989, insuring Olga Nina Morrall respecting operation of a tavern at 3471 Maple Island road, Muskegon county, had property, money, goods, chattels and effects in its hands and under its custody and control belonging to the principal defendant.
Under date of April 29, 1959, general counsel for garnishee defendant filed a written disclosure denying that Michigan Surety Company was in any way or manner indebted to the said Olga Nina Morrall in any sum or amount whatever.
Attorney for plaintiff made demand for personal examination of the garnishee defendant, requesting that garnishee defendant produce before the court insurance policy number ML9989. On May 1, 1959, Michigan Surety Company filed an answer disclosing the existence of the policy, claiming the said policy was an owners', landlords' and tenants' liability insurance policy and therefore was a protection against the ordinary hazards incidental to the ownership, maintenance and use of the aforesaid premises. Michigan Surety Company further alleged that the plaintiff's decedent was an employee of defendant Olga Nina Morrall on March 26, 1958. The answer further claimed that there was no liability under the aforesaid policy for any act, either willful or negligent, by the defendant and insured, Olga Nina Morrall herself.
A petition for order defining statutory issue in garnishment was filed and noticed for hearing. A motion to vacate the judgment in the principal case was then filed by Michigan Surety Company and noticed for hearing on the same date.
Michigan Surety Company in its motion to vacate judgment claimed that the court had no jurisdiction over the defendant Olga Nina Morrall because she had never been served with process in the suit; that the attachment suit was a proceeding in rem and that when the writ was dissolved the res was destroyed and the court lost jurisdiction over the defendant without personal service of the process upon her; that the attorney for defendant, by withdrawing the appearance and answer, caused jurisdiction to be lost; and that said defendant's attorney was without authority to appear for said principal defendant and without authority to accept service of process for such defendant in the suit.
The plaintiff replied to the motion to vacate judgment by asserting that a writ of attachment is also a summons, and that the acceptance of service of the writ by the authorized attorney for the principal defendant conferred jurisdiction on the court so that a personal judgment could be entered. Principal defendant's attorney testified at the hearing on the motion that he was authorized by principal defendant to enter the general appearance and answer and to withdraw same.
Following the hearing, the motion to vacate the judgment was denied by the trial court. Appropriate order with reference to the motion to vacate was filed. The hearing on the statutory issue in garnishment was ordered to be confined to the issues raised in the writ of garnishment, the disclosure and the answer. At the hearing a stipulation was then entered between attorneys for the plaintiff and the attorney for the garnishee defendant, which provided as follows:
'It is hereby stipulated * * * that the liability of garnishee defendant to plaintiff in the above matter may be decided by the court solely on the basis of briefs submitted by the respective parties and those facts and matters of record set forth below.
'It is further stipulated that all allegations of fact contained in plaintiff's amended declaration, particularly paragraph 4 thereof, may be taken as true and admitted, together with the facts that at the time complained of principal defendant was the owner and the operator of the Maple Island Tavern and the attached insurance policy was in full force and effect.
'It is further...
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...2015." "The failure to raise a question in the lower court precludes the Supreme Court considering it on appeal." Young v. Morrall , 359 Mich. 180, 187, 101 N.W.2d 358 (1960). In his application to this Court, defendant, perhaps inspired by the Court of Appeals dissent, presented only the q......
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