Millard v. Lenawee Circuit Judge

107 Mich. 134

Opinion

GRANT, J.

Relator sued one Mrs. Hays, garnishing Waldby & Clay’s State Bank. The bank filed a disclosure, and afterwards moved to quash the garnishee proceedings, which motion prevailed. The object oí this petition is to set aside that order.'

1." The affidavit for the writ of garnishment was made before the original suit was commenced, but on the same dajT, ajid stated that “a suit was about to be commenced.” The statute does not require the affidavit to be made at the time of or after the commencement of suit, but provides that such affidavit shall be filed with the clerk “at the time of or after the commencement of suit.” 3 How. Stat. g S058. Where the affidavit is made upon the same day with the commencement of suit, the court acquires jurisdiction.

2. The affidavit was made by Henry C. Smith, as agent and attorney of plaintiff. The garnishee summons •was drawn upon a printed blank, reciting that a suit had been commenced against the principal defendant, and by a clerical mistake it warned the said “Henry C. Smith, agent and attorney of Ida M. Millard, thenceforth to pay mo money to the said Mrs. J. A. Hays.” The statute requires the garnishee defendant to be warned to pay no money to the principal defendant. The court below held the failure to do this to he a fatal defect, and quashed the proceedings for that reason. We think the court was in error. The summons unmistakably showed upon its face that this was a clerical error. It required no extraneous evidence to show it. It follows that the amendment of the writ was proper, and should have been allowed, permitting the insertion of the name of the bank in place of Henry C. Smith.

The writ will issue as prayed.

The other Justices concurred.