Gunn Hardware Co. v. Denison

Michigan Supreme Court

Gunn Hardware Co. v. Denison

46 N.W. 940, 83 Mich. 40, 1890 Mich. LEXIS 904

CourtMichigan Supreme Court

DecidedOctober 31, 1890

StatusPublished

Cited by7 cases

This text of 46 N.W. 940 (Gunn Hardware Co. v. Denison) 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

Gunn Hardware Co. v. Denison, 46 N.W. 940, 83 Mich. 40, 1890 Mich. LEXIS 904 (Mich. 1890).

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Opinion

Champlin, C. J.

On November 4, 1889, the plaintiff commenced suit against the defendant by attachment. The plaintiff's demand consisted of two items. The first item was the balance then due from defendant to plaintiff upon an open account amounting to $196.23. The second item was a promissory note dated April 26, 1889, payable January 10, 1890, for $316.16. Two affidavits were made as the foundation of the attachment proceedings,—one, in the ordinary form required by section 7987 of Howell's Statutes, stating that $196.23 was then due upon express contract; the other was an affidavit framed under the provisions of Act No. 149, Laws of 1889, permitting attachments under certain circumstances where the indebtedness was not due. This affidavit was indorsed by the judge of the superior court, as required by statute. Afterwards such proceedings were had that the attachment was served and duly returned. .

A declaration was filed by the plaintiff, to which the defendant appeared and pleaded the general issue. The cause came on for trial on May 2, 1890, when the note .above mentioned was offered in evidence, to the intro[42]*42duction of which counsel for defendant objected, for the-reason that it appeared that the action was commenced on November 4, 1889, and the note was not due until January 10, 1890, and that no sufficient affidavit had been filed by which said action could have been commenced by attachment for the amount represented by said note before such note became due. The objection was overruled, and defendant alleges error.

The ruling was correct. By appearing to the action,, and pleading the general issue, the defendant waived all irregularities in the prior proceedings. The court had jurisdiction over the subject-matter and the parties. Insufficiency of an affidavit cannot be taken advantage of upon the trial, in a suit between the parties to the record in which such affidavit was filed. Wasey v. Mahoney, 55 Mich. 194 (20 N. W. Rep. 901); Taylor v. Adams, 58 Id. 187 (24 N. W. Rep. 864). We have uniformly held that all objections to process or proceedings by which the defendant is brought into court are waived by him by pleading to the merits. The decisions are collected in plaintiffs brief, and need not be cited here. If the-defendant wishes to raise the question of the sufficiency of the affidavit, he must do so in some manner known, and practiced, before pleading to the merits.

The judgment is.affirmed.

The other Justices concurred.

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Champlin, C. J.

On November 4, 1889, the plaintiff commenced suit against the defendant by attachment. The plaintiff's demand consisted of two items. The first item was the balance then due from defendant to plaintiff upon an open account amounting to $196.23. The second item was a promissory note dated April 26, 1889, payable January 10, 1890, for $316.16. Two affidavits were made as the foundation of the attachment proceedings,—one, in the ordinary form required by section 7987 of Howell's Statutes, stating that $196.23 was then due upon express contract; the other was an affidavit framed under the provisions of Act No. 149, Laws of 1889, permitting attachments under certain circumstances where the indebtedness was not due. This affidavit was indorsed by the judge of the superior court, as required by statute. Afterwards such proceedings were had that the attachment was served and duly returned. .

A declaration was filed by the plaintiff, to which the defendant appeared and pleaded the general issue. The cause came on for trial on May 2, 1890, when the note .above mentioned was offered in evidence, to the intro[42]*42duction of which counsel for defendant objected, for the-reason that it appeared that the action was commenced on November 4, 1889, and the note was not due until January 10, 1890, and that no sufficient affidavit had been filed by which said action could have been commenced by attachment for the amount represented by said note before such note became due. The objection was overruled, and defendant alleges error.

The ruling was correct. By appearing to the action,, and pleading the general issue, the defendant waived all irregularities in the prior proceedings. The court had jurisdiction over the subject-matter and the parties. Insufficiency of an affidavit cannot be taken advantage of upon the trial, in a suit between the parties to the record in which such affidavit was filed. Wasey v. Mahoney, 55 Mich. 194 (20 N. W. Rep. 901); Taylor v. Adams, 58 Id. 187 (24 N. W. Rep. 864). We have uniformly held that all objections to process or proceedings by which the defendant is brought into court are waived by him by pleading to the merits. The decisions are collected in plaintiffs brief, and need not be cited here. If the-defendant wishes to raise the question of the sufficiency of the affidavit, he must do so in some manner known, and practiced, before pleading to the merits.

The judgment is.affirmed.

The other Justices concurred.

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Bluebook (online)

46 N.W. 940, 83 Mich. 40, 1890 Mich. LEXIS 904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gunn-hardware-co-v-denison-mich-1890.

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