Spaulding v. Ionia Circuit Judge

Michigan Supreme Court

Spaulding v. Ionia Circuit Judge

211 N.W. 31, 236 Mich. 601, 1926 Mich. LEXIS 883

CourtMichigan Supreme Court

DecidedJune 8, 1926

DocketCalendar 32,411

StatusPublished

This text of 211 N.W. 31 (Spaulding v. Ionia Circuit Judge) 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

Spaulding v. Ionia Circuit Judge, 211 N.W. 31, 236 Mich. 601, 1926 Mich. LEXIS 883 (Mich. 1926).

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Opinion

Wiest, J.

Plaintiff herein was taken into custody by virtue of a writ of capias ad respondendum issued at the suit of Hulgar Larson, and gave special bail for his appearance in the suit. He then appeared specially and moved to quash the writ on the grounds that, at the time bail was fixed by the circuit judge, no declaration, accompanied the affidavit, no deelara *603 tion was served with the writ or had then been filed in the suit and the affidavit for the writ shows on its face that the asserted facts were not within the personal knowledge of the affiant. We here review the refusal of the circuit judge to quash the writ.

In the return the circuit judge states he does not know and is unable to say whether the declaration was presented with the affidavit for the writ. The statute (3 Comp. Laws 1915, § 12416) requires the declaration to be presented with the affidavit for the writ. The return, however, precludes a finding that the declaration was not so presented. The statute (3 Comp. Laws 1915, § 12417) requires a copy of the declaration to be served with the writ. This was not done, and for such failure the service was bad and might have been set aside, but afforded no ground for quashing the writ.

The capias was served November 20th, and the declaration was not filed until December 12th. We held in Bradby v. Wayne Circuit Judge, 214 Mich. 142, that the declaration need not be filed before service of the writ but this does not excuse failure to serve the declaration with the writ. The motion, however, is not to set aside the service but to quash the writ.

In the affidavit for the writ Mr. Larson set forth:

“That he makes this affidavit in his own behalf and that he has personal knowledge of the facts and circumstances as set forth in the affidavit. * * *

“Affiant further says that afterwards and on or about to wit the 9th day of November, A. D. 1925, he discovered and was informed by veterinary advice and then and there knew that said cows were afflicted with the contagious disease,” etc.

We must take this allegation as it reads, and may not say therefrom that affiant had no personal knowledge of the fact asserted. While his personal knowledge could not be supported by advice of a veterinary surgeon yet the fact he inserted such corroboration *604 does not destroy his allegation of personal knowledge.. We are unable to say that such knowledge might not have been possessed by the affiant, for his experience and skill may have been sufficient to enable him to properly diagnose the disease. In the absence of a. showing that affiant was not qualified to give competent evidence as to the diseased condition of the-cattle the affidavit must be held good.

The writ is denied, with costs against plaintiff herein.

Bird, C. J., and Sharpe, Snow, Steere, Fellows,. Clark, and McDonald, JJ., concurred.

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Wiest, J.

Plaintiff herein was taken into custody by virtue of a writ of capias ad respondendum issued at the suit of Hulgar Larson, and gave special bail for his appearance in the suit. He then appeared specially and moved to quash the writ on the grounds that, at the time bail was fixed by the circuit judge, no declaration, accompanied the affidavit, no deelara *603 tion was served with the writ or had then been filed in the suit and the affidavit for the writ shows on its face that the asserted facts were not within the personal knowledge of the affiant. We here review the refusal of the circuit judge to quash the writ.

In the return the circuit judge states he does not know and is unable to say whether the declaration was presented with the affidavit for the writ. The statute (3 Comp. Laws 1915, § 12416) requires the declaration to be presented with the affidavit for the writ. The return, however, precludes a finding that the declaration was not so presented. The statute (3 Comp. Laws 1915, § 12417) requires a copy of the declaration to be served with the writ. This was not done, and for such failure the service was bad and might have been set aside, but afforded no ground for quashing the writ.

The capias was served November 20th, and the declaration was not filed until December 12th. We held in Bradby v. Wayne Circuit Judge, 214 Mich. 142, that the declaration need not be filed before service of the writ but this does not excuse failure to serve the declaration with the writ. The motion, however, is not to set aside the service but to quash the writ.

In the affidavit for the writ Mr. Larson set forth:

“That he makes this affidavit in his own behalf and that he has personal knowledge of the facts and circumstances as set forth in the affidavit. * * *

“Affiant further says that afterwards and on or about to wit the 9th day of November, A. D. 1925, he discovered and was informed by veterinary advice and then and there knew that said cows were afflicted with the contagious disease,” etc.

We must take this allegation as it reads, and may not say therefrom that affiant had no personal knowledge of the fact asserted. While his personal knowledge could not be supported by advice of a veterinary surgeon yet the fact he inserted such corroboration *604 does not destroy his allegation of personal knowledge.. We are unable to say that such knowledge might not have been possessed by the affiant, for his experience and skill may have been sufficient to enable him to properly diagnose the disease. In the absence of a. showing that affiant was not qualified to give competent evidence as to the diseased condition of the-cattle the affidavit must be held good.

The writ is denied, with costs against plaintiff herein.

Bird, C. J., and Sharpe, Snow, Steere, Fellows,. Clark, and McDonald, JJ., concurred.

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Bluebook (online)

211 N.W. 31, 236 Mich. 601, 1926 Mich. LEXIS 883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spaulding-v-ionia-circuit-judge-mich-1926.

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