Paulus v. Corbett

1 Mich. Pr. 81

• Court: Michigan Supreme Court
• Decided: October 15, 1896
• Status: Published

Opinion

The facts as established by the petition and answer were:

1. That on January 30, 1893, relator delivered to the sheriff of Leelanaw county for service a writ oí capias ad respondendum before then issued in Ms favor from tlie circuit court of said county against Louis J. Grobben, as defendant, upon which an order to hold to bail had been duly endorsed, which' writ was, on the return day thereof, returned with a certificate endorsed thereon, signed by said sheriff, in which he stated “that he had taken Louis J. Grobben, the within named defendant, whose body he had ready as within commanded.”

[The affidavit of George H. Cross, one' of relator’s attorneys in said .attachment proceeding, was filed in opposition to and denial of the aforesaid answer, in which he denied that the relator ever abandoned said capias suit, and averred that the new suit referred to in said answer was commenced by counsel other than these conducting said capias suit while the same was pending in the Supreme Court; that said new suit was dismissed on a plea of a former suit pending between the same parties for the same cause of action. Editor.] [In support of said order the respondent filed an opinion, which was made a part of relator’s petition, giving his reasons for making the order, namely: a — That while from long usage the return, as made by the sheriff, is the one made when appearance bail has been given and the defendant discharged from custody, yet from popular construction, and to one not' initiated into the mysteries of ancient common law forms, the opposite meaning, that the defendant is in custody, and Ms body ready in court on the return day; is the more reasonable one, and particularly so when construed in connection with the command in the writ, and this is evidently what the sheriff meant by his return.

2. That on the return day the defendant moved the court to quash said writ, which motion was granted, and an order entered discharging the bail bond; that such proceedings were thereafter had as resulted in the review of said order on writ of error and the reversal thereof, reference being had for greater certainty to Paulus v. Grobben, 104 Mich. 42; that on April 28, 1895, a remittitur was filed with the clerk of said circuit court.

3.That said defendant having failed to put in and perfect special bail, relator filed an affidavit of that fact, and entered a rule requiring the. sheriff, within 20 days, to put in and perfect such bail; that such further proceedings were had as resulted in the attachment of said sheriff, under a writ of attachment duly issued for that purpose, the return of said writ by one of the coroners of said county, with a return endorsed thereon showing said sheriff in custody for want of bail, the filing by relator of interrogatories, the entry of an order requiring the sheriff to answer the same, the making of said answer, from which it appeared that said capias was delivered to the sheriff for service and served and returned; that a rule requiring the sheriff to put in special bail was entered and served, and that he had failed to comply with said rule, all as set forth in relator’s petition.

4. That the sheriff for further answer said that at the time of the arrest of Grobben no bail for Ms appearance at court or providing for the putting in of special bail was given by said Grobben; that said Grobben remained in his custody until the return day of the writ, at which time he appeared personally and by attorney, and was by the order of the court discharged from custody, said writ being by the same order quashed; that at no time was any order entered by the court requiring the defendant, Grobben, to put in and perfect special bail, nor was such an order asked for by plaintiff’s attorney; that after the quashing of said writ, the case was abandoned by relator, and a new suit commenced for the same cause of action.

5.That on October 16, 1895, the attachment proceedings against the sheriff were brought on to be heard before the respondent upon said interrogatories, answers, affidavit, and the files and records in the capias suit; that on February 3, 1896, the respondent made an order permitting the sheriff to amend his return to said capias according to the facts as they appeared in his answers to said interrogatories, after, which judgment was entered dismissing the attachment proceedings and discharging the sheriff therefrom.

b — That from the interrogatories, the answers thereto, and relator’s response to such answers, it appears that no appearance bail was given by the defendant; that he was arrested by the sheriff, who produced his body in court on the return day of the capias; that on that day the writ was .quashed, and the defendant discharged, and that the judgment so entered was reversed on writ of error, and the ease remanded for further proceedings; that while said appeal was pending relator commenced a new suit by declaration for the same cause of action, which was dismissed on a plea of a former suit pending, etc; that if the court may act upon these undisputed facts, they furnished a sufficient excuse for the failure of the sheriff to put in and perfect special bail for the defendant, and would be a bar to an action brought by relator against the sheriff for an escape. c — That the question presented is can the sheriff amend his return so as to correspond with the facts? The allowance of amendments is a matter of judicial discretion; that the weight of authority is to the effect that an officer may amend pending proceedings against him for a false return; that in this case the rignts of no third parties intervene; that there is no contention that the relator was deceived as to the facts as they existed, and the plain dictates of justice require that an amendment be allowed. Editor]

6. That the sheriff at no time during the pendency of said attachment proceedings signified any desire to amend his return;-that the order of the respondent allowing said amendment was made and entered without any request therefor on the part of the sheriff, and without notice to relator, or proper showing being made.

7. That on May 18, 1896, relator moved the court to vacate the order complained of, and by summary proceedings ascertain the amount due relator in the capias suit, in the same manner as if interlocutory judgment had been rendered against the defendant therein, and render judgment against said sheriff in the attachment proceedings for the amount so founded to be due, with the costs of the suit and the attachment proceedings, which motion was denied by respondent.