Dillon v. Howe

57 N.W. 102, 98 Mich. 168, 1893 Mich. LEXIS 1025

• Court: Michigan Supreme Court
• Decided: December 22, 1893
• Status: Published

Opinion

Grant, J.

This action was brought in 'justice’s court, under Act No. 229, Laws of 1887, to enforce a lien for work and labor in loading and skidding a lot of pine and hemlock logs.

1. Plaintiff was an infant, and process was issued without the appointment of a next friend. Defendant company insists that the court obtained no jurisdiction, because section 6864, How. Stat., provides that no process shall issue in favor of an infant plaintiff until the next friend shall be appointed. There are two answers To this objection :

a — Defendant made no objection for this reason in the justice’s court. Pistorius v. Swarthout, 67 Mich. 186; Peterson v. Fowler, 76 Id, 258.

1) — The justice, upon the motion of the plaintiff, appointed a next friend, which appointment was valid. Parks v. Goodwin, 1 Doug. 56; Gray v. Willcox, 56 Mich. 58.

2. It is next objected that the description of the property in the writ of attachment was insufficient to confer jurisdiction. It was described as—

“About 200,000 feet of pine and hemlock lumber, and also about 300 cords of slabs.”

This was clearly insufficient, under the authority of Stevens v. Osman, 1 Mich. 92.¹ Unless this decision has been overruled by subsequent cases, the defendant must prevail.

In Farwell v. Fox, 18 Mich. 169, the Court held that the rule in Stevens v. Osman was needlessly stringent.

In Sexton v. McDowd, 38 Mich. 148, it was held that the description in a writ of replevin is sufficient, if, with outside help> the officer executing it can identify the property. The doctrine in Farwell v. Fox and Sexton v. McDowd was approved in Pingree v. Steere, 68 Mich. 204.

In Paterson, v. Parsell, 38 Mich. 607, the writ was held void for failure to describe the property. The writ in that case contained no description, but the affidavit annexed thereto did. The affidavit in that case required by the statute is not required to describe the property, but is to refer to the writ for a description. Motion was made to amend the writ, but the court held there was nothing to amend, and quashed the proceedings.

The strict rule laid down in Stevens v. Osman is practically overruled by the subsequent decisions above cited. We see no reason for 'applying a more stringent rule in attachment cases brought under the log-lien act than in cases of replevin. Under this act the plaintiff is required to annex to the writ an affidavit stating- the amount due him for work and labor performed upon the property “mentioned in the annexed writ.” Under the authority of Paterson v. Parsell, the affidavit cannot be resorted to for a description of the property. Neither in the statement of lien, nor in the writ of attachment, nor in the affidavit attached thereto, is the plaintiff expressly required to state who is the owner of the logs. But the officer executing the writ is required to serve a copy of the attachment “upon the owner of said products, or any of them, their proper agent or attorney, if such owner, agent, or attorney be known to him and residing in this State.” One reason for the decision in the replevin cases above cited is that -the property is in the possession of the defendant, and unlawfully detained by him. This reason, of course, cannot apply to the present case, for the owner may or may’ not be in the actual possession of the property. In the present case, the principal defendant, Howe, was the’ contractor, and plaintiff worked for him, and not for-the owner of the property. It is true that there is nothing upon the face of the writ to indicate that the property belonged to the defendant company. But, when service was made upon it, it was thereby notified that the lumber was seized as its property, and that plaintiff claimed a lien thereon for work done thereon under a contract with the principal defendant. Under the authorities, and particularly under that of Sexton v. McDowd, we are constrained to hold that the description was sufficient.

3. It was essential for the plaintiff to show the date of the last day’s work done by him. On his direct examination, he testified that this was the 30th of April. On cross-examination he testified that “he knew it was that' day, because he had got it down in a book, or on a piece of paper, rather, in his pocket.” Witness then, evidently, seafched Ms pockets to find the paper, but could not. He said he had had it that morning. He further testified that the book in which he kept the dates got torn, and he drew it off on another piece of paper, and that he had burned the book. On redirect examination he was permitted, under objection, to state that the paper was a copy of his time book, and that it showed each day that he worked, and what he Avorked at; that he had had the paper that' day, since dinner, at his attorney’s (Mr. De Long’s) office. Mr. De Long then stated that the paper might be in his office, and Avas requested by the defendant’s attorney to produce it. This was not done, and the witness was permitted to state its contents. This Avas error, which is not cured by the fact that plaintiff had testified, Avithout the aid of the memorandum, to the date. The paper was not admissible at all, and in any event was the best evidence of what it contained, and its contents could not be shown without due proof of its loss.

4. The introduction of the affidavit, writ, and return of the officer was error. They were immaterial, and had no bearing upon any question to be submitted to the jury. If they were in any respect irregular, advantage thereof could only be taken by a motion to quash. The judgment would probably not be reversed for this error alone, but it is proper to determine it in the event of a new trial.

Judgment reversed, and neAV trial ordered.

The other Justices concurred.

1 The property was described as “ a quantity of com, consisting-of about 100 bushels, and a quantity of rye, consisting of about 200 bushels.”