Benie v. Wayne Circuit Judge

Michigan Supreme Court

Benie v. Wayne Circuit Judge

118 N.W. 369, 154 Mich. 591, 1908 Mich. LEXIS 764

CourtMichigan Supreme Court

DecidedNovember 30, 1908

DocketCalendar No. 22,985

StatusPublished

Cited by1 cases

This text of 118 N.W. 369 (Benie v. Wayne Circuit Judge) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Benie v. Wayne Circuit Judge, 118 N.W. 369, 154 Mich. 591, 1908 Mich. LEXIS 764 (Mich. 1908).

Pincite

Opinion

Moore, J.

William Larges instituted a suit by capias against the relator, charging him in a sworn affidavit with an assault upon the affiant, his wife, and daughter. In the affidavit was a detailed statement of the assault, which it is claimed was accompanied by threats, and was - made by shooting a gun toward the affiant, his wife, and daughter, which frightened him, his wife, and daughter. It was further stated in the affidavit that, as a result of her fright, affiant’s wife became sick and was confined to her bed, and that affiant was deprived of her society and her services, and was compelled to pay large sums of money for medical and other services. The affidavit was attached to the writ of capias, in which writ a. claim of damages to the amount of $5,000 was made. The relator was arrested and required to give bail in the sum of $500. Afterward a motion was made to quash the writ for several reasons. The motion was denied, and this is a proceeding to review that action.

Counsel for relator states in his brief:

[592]*592“ Although several reasons were assigned in the naotion to quash, we submit the all-important one was contained in the claim that the court had no jurisdiction to order the relator to furnish bail in the sum of $500, as there was no amount stated in the affidavit showing the amount plaintiff claimed as damages as the result of the assault.”

Counsel argue no other question in the brief. He does not cite any authorities in support of his position.

Section 9996, 3 Comp. Laws, authorizes the commencement by capias ad respondendum of certain personal actions arising upon contract, express or implied. This section requires a statement in the affidavit that the plaintiff has a claim for damages “upon which he believes that the plaintiff is entitled to recover a certain sum being more than one hundred dollars.” This suit, however, is not commenced under the provisions of the above section, but is brought under the provisions of sections 9998, 9999, 3 Comp. Laws, which require the affidavit to be attached to the writ, and to show the nature of the plaintiff’s claim. These sections do not require the affidavit to contain a statement of a belief that the. plaintiff is entitled to recover a certain sum exceeding $100. The affidavit contained all the essentials required by the statute under which the proceeding was instituted.

The order of the court below is affirmed, with costs.

Grant, C. J., and Blair, Montgomery, and Mc-Alvay, JJ., concurred.

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Moore, J.

William Larges instituted a suit by capias against the relator, charging him in a sworn affidavit with an assault upon the affiant, his wife, and daughter. In the affidavit was a detailed statement of the assault, which it is claimed was accompanied by threats, and was - made by shooting a gun toward the affiant, his wife, and daughter, which frightened him, his wife, and daughter. It was further stated in the affidavit that, as a result of her fright, affiant’s wife became sick and was confined to her bed, and that affiant was deprived of her society and her services, and was compelled to pay large sums of money for medical and other services. The affidavit was attached to the writ of capias, in which writ a. claim of damages to the amount of $5,000 was made. The relator was arrested and required to give bail in the sum of $500. Afterward a motion was made to quash the writ for several reasons. The motion was denied, and this is a proceeding to review that action.

Counsel for relator states in his brief:

[592]*592“ Although several reasons were assigned in the naotion to quash, we submit the all-important one was contained in the claim that the court had no jurisdiction to order the relator to furnish bail in the sum of $500, as there was no amount stated in the affidavit showing the amount plaintiff claimed as damages as the result of the assault.”

Counsel argue no other question in the brief. He does not cite any authorities in support of his position.

Section 9996, 3 Comp. Laws, authorizes the commencement by capias ad respondendum of certain personal actions arising upon contract, express or implied. This section requires a statement in the affidavit that the plaintiff has a claim for damages “upon which he believes that the plaintiff is entitled to recover a certain sum being more than one hundred dollars.” This suit, however, is not commenced under the provisions of the above section, but is brought under the provisions of sections 9998, 9999, 3 Comp. Laws, which require the affidavit to be attached to the writ, and to show the nature of the plaintiff’s claim. These sections do not require the affidavit to contain a statement of a belief that the. plaintiff is entitled to recover a certain sum exceeding $100. The affidavit contained all the essentials required by the statute under which the proceeding was instituted.

The order of the court below is affirmed, with costs.

Grant, C. J., and Blair, Montgomery, and Mc-Alvay, JJ., concurred.

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Bluebook (online)

118 N.W. 369, 154 Mich. 591, 1908 Mich. LEXIS 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benie-v-wayne-circuit-judge-mich-1908.

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