Zook v. Blough

• Decision Date: 20 January 1880
• Citation: 42 Mich. 487,4 N.W. 219
• Court: Michigan Supreme Court
• Parties: SOLOMON ZOOK v. J.P. BLOUGH.

4 N.W. 219

42 Mich. 487

SOLOMON ZOOK v. J.P. BLOUGH.

Supreme Court of Michigan

January 20, 1880

A circuit court may issue certiorari to review proceedings of the circuit court commissioner dissolving an attachment. A petition to a circuit court commissioner for the dissolution of an attachment may be sufficient to confer jurisdiction though it do not distinctly allege that the petitioner is entitled to the possession of the property, if it clearly and distinctly alleges a present ownership from which a right to the possession would, in the absence of anything to the contrary, be presumed.

Error to St. Joseph.

O.P Coffinberry, for plaintiff in error.

S.B Kingsbury, for defendant in error.

MARSTON, C.J.

Blough sued out a writ of attachment before a justice of the peace against Zook, and property was seized by virtue thereof. An application was made before a circuit court commissioner for a dissolution of the attachment, and upon the hearing it was dissolved. The proceedings were then removed to the circuit court by certiorari, and on hearing quashed.

A circuit court commissioner had power to allow the writ, (2 Comp.Laws, � 7133,) and the circuit court had jurisdiction to issue and hear the same. Merricks v. Township Board, 41 Mich. 630.

The principal question, and the only one remaining to be considered, which is deemed of any importance, relates to the sufficiency of the petition praying for a dissolution of the attachment.

The objection urged against it was, that it did not contain any allegation that the petitioner was entitled to the possession of the property. The petition set forth that the officer did "seize and take into his possession, of the goods and chattels of this deponent," *** certain described property, and that he levied on ten acres of corn, and seven and one-half acres of oats, all of which corn and oats "are and then were growing on the farm of deponent," which was described; all of which goods and chattels "were and now are, and ever since have been the goods, property and chattels of this deponent."

As was said in Johnson v. De Witt, 36 Mich. 96, the fair inference is that the owner of personal property is entitled to its possession, and yet he may not be; and that therefore, on principle, the application should allege a right to the possession of the attached property. Where however, an allegation of ownership is distinctly made, and there is nothing in ...