McDonald v. Alanson Manufacturing Co.

64 N.W. 730, 107 Mich. 10, 1895 Mich. LEXIS 1069

• Court: Michigan Supreme Court
• Decided: October 22, 1895
• Status: Published

Opinion

McGrath, O. J.

The declaration herein was filed April 13, 3 894. A writ of garnishment was issued on the same ■day, and served April 14, 1894. Plaintiffs afterwards ■filed an affidavit of service of the declaration upon the principal defendant, in Ohio, under 2 How. Stat. § 8087. Defaults were subsequently entered, and judgments taken. On September 12, 1804, the principal defendant appeared specially, and moved to set aside the judgment against him, and at the same time parties claiming under an alleged assignment from Sinclair moved to set aside the judgment against the garnishee defendant, and that the assignees be allowed to intervene. Both motions were, on October 16, 1894, granted. Pending these motions, and on September 28, 1894, personal service upon Sinclair was obtained, his default for want of appearance was taken, made absolute, and judgment had. Subsequently, judgment was had against the garnishee, who appeals.

It is contended that no suit had been commenced, under 3 How. Stat. § 8058, when the writ of garnishment issued. The language, “ at the time of or after the commencement of suit,” was clearly intended to refer to the filing of the declaration, or other act entitling plaintiff to process. The recitation in the garnishee summons of the commencement of suit is predicated upon what appears, and not upon the delivery of the writ in the principal suit to the sheriff, or its service. Such is the practical construction which has been given to this act ever since its adoption.

The other questions in the case are ruled by Axtell v. Gibbs, 52 Mich. 639.

The judgment is affirmed.

The other Justices concurred.