Heald v. Montcalm Circuit Judge

131 N.W. 552, 166 Mich. 297, 1911 Mich. LEXIS 515

• Court: Michigan Supreme Court
• Decided: June 2, 1911
• Docket: Calendar No. 24,432
• Status: Published

Opinions

Brooke, J.

(after stating the facts). The return of the respondent shows that the learned circuit judge set aside the judgment as to Hockstra because there should have been notice to Hockstra that judgment would be asked, and no suchjnotice was shown.

Plaintiff relies upon the provisions of 3 Comp. Laws, § 10610:

“The affidavit for the writ of garnishment shall be held and considered as a declaration by the plaintiff in trover against the garnishee as defendant, where the garnishee is chargeable for property and for money had and received, when he is chargeable upon indebtedness against the garnishee, and upon the filing of the garnishee disclosure, or upon filing of the answers to such written interrogatories in cases where the same are required and filed, or upon the filing of the report of the testimony, or statement, made by such garnishee on personal examination, in cases where such examination is had, the matter of such affidavit shall be considered as denied, except so far as the same is admitted by such disclosure, answers to interrogatories or report, which admission shall have the effect of admissions in a plea, and also shall be prima facie evidence of the matters therein admitted. And thereupon a statutory issue shall be deemed framed for the trial of the question of the garnishee’s liability to the plaintiff. And judgment may be rendered against such garnishee defendant as upon declaration and plea, or on plaintiff’s motion to the court at any time after final judgment against the defendant in the principal cause, without further notice to such garnishee.”

As a part of this quotation:

“ Provided, however, if such plaintiff or such garnishee defendant shall within ten days after filing of such disclosure, answer, or statement, file with the clerk of such court a demand for trial of the cause, said cause shall stand for trial in the manner provided by this act. The time for filing said demand may he extended by the court upon application and showing.”

Under the admissions of the garnishee defendant in his oral examination, there would seem to be no doubt of his liability as garnishee.

The statute clearly provides for the entry of judgment against the garnishee at any time after final judgment against the principal defendant on motion of the plaintiff and without further notice to the garnishee.

The record shows that more than 10 days had elapsed after the report of the commissioner was filed before judgment was taken, during which interval no demand for a trial was filed by the garnishee. King v. Harrigan, 145 Mich. 436 (108 N. W. 748).

The writ will issue.

Bird, Blair, and Stone, JJ., concurred with Brooke, J.