Steele v. Bliss

134 N.W. 1013, 170 Mich. 175, 1912 Mich. LEXIS 810
CourtMichigan Supreme Court
DecidedMarch 12, 1912
DocketDocket No. 116
StatusPublished
Cited by8 cases

This text of 134 N.W. 1013 (Steele v. Bliss) 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
Steele v. Bliss, 134 N.W. 1013, 170 Mich. 175, 1912 Mich. LEXIS 810 (Mich. 1912).

Opinions

McAlvay, J.

Complainant filed his bill of complaint in this cause in the circuit court for Gladwin county, in chancery, in which county he resided and owned certain lands upon which a levy had been made of an execution issued out of the circuit court for Saginaw county, upon judgment at law rendered therein against him, for the purpose of setting aside said judgment and levy of execution and restraining appellants from enforcing said judgment. The principal judgment was obtained in a suit at [177]*177law brought in the circuit court of the county of Saginaw by Aaron T. Bliss, since deceased, as plaintiff, against Silas W. Tyler and Fred B. Tyler, copartners, as joint defendants on their joint liability upon promissory notes, and rendered against Fred B. Tyler, one of the principal defendants, and also a judgment in garnishment against Wilber W. Steele (this complainant), Caille Bros. Company, a corporation, A. Arthur Caille, and Adolph A. Caille, as garnishees of said defendant Fred B. Tyler.

The litigation in the suit and proceedings out of which the instant case arises have been before this court several times. For the purpose of a general understanding of the facts and questions involved in the case in Saginaw county, reference is had to the following decisions: Bliss v. Caille Bros. Co., 149 Mich. 601 (113 N. W. 317, 12 Am. & Eng. Ann. Cas. 513); Id. 155 Mich. 480 (120 N. W. 6); Id. 157 Mich. 258 (121 N. W. 756); Id. 158 Mich. 212 (122 N. W. 543).

The first time that the law case in which the judgment now attacked was rendered was before this court the facts were stated as follows (Bliss v. Caille Bros. Co., 149 Mich., at pages 602, 603 [113 N. W. 317, 12 Am. & Eng. Ann. Cas. 513]):

“Appellants (Caille Bros. Company, Wilber W. Steele, A. Arthur Caille, and Adolph A. Caille) are defendants in garnishment proceedings which have proceeded to judgment against them upon their default for want of appearance and disclosure. Execution has issued and property has been seized thereunder. The garnishment proceedings are ancillary to an action of assumpsit begun by Aaron T. Bliss in the circuit court for the county of Saginaw, in which county he resided, against two joint promisors, some time copartners, by the issuing of a summons and writ of attachment (3 Comp. Laws, § 10584) by serving one defendant personally within the jurisdiction of the court, and by attaching, as appears by the return of the sheriff, real estate of the other (nonresident) defendant, against whom alone the asserted ground for attachment existed, situated in said county. Judgment in the [178]*178principal action was rendered for the resident defendant upon his plea of the statute of limitations and his discharge in bankruptcy, and against the other (nonresident) defendant, who did not appear. Appellants are charged as garnishees of the judgment debtor. They reside in the county of Wayne, and the writ of garnishment was executed there.
“ In the three several motions, in substantially the same form, entered in the court below, in each of which some of the garnishee defendants are the movers, it was asked that the judgment in the principal cause and in the garnishment proceeding, the defaults of the principal defendant and of the garnishee defendants, the service of the writs in both the principal and ancillary suits, be vacated and set aside, and that further proceedings under the execution levy be stayed, pending the hearing. Reasons given for the relief sought are based upon the record and files in the several cases and upon affidavits, which, it is claimed establish, among other facts, the one that the land upon which the writ of attachment was levied was not at that or at any other time the property of the nonresident judgment debtor. These motions coming on to be heard, they were denied. Thereupon appellants joined in suing out a writ of error, and have separately assigned errors.”

The case was reversed upon a question of the disqualification of the judge who heard and decided these motions, which question was not brought to his attention, because not then known by him or the appellants in that case. After such disposition of the case, this court further said:

“As the judgments are not attacked for anything appearing of record in the matters in which they were rendered, but only by matters brought upon the record with the motions to vacate, and as the only other error assigned is that the court, in consideration of such matters of fact, should have vacated the judgments, there is no further question for our consideration.”

These motions were heard before another judge of Saginaw circuit court and again denied. An application was then made to this court for a mandamus to compel the trial judge to file findings of fact and law. This was twice argued and denied. See Caille Bros. Co. v. Sagi[179]*179naw Circuit Judge, 155 Mich. 480, at pages 481, 482 (120 N. W. 6). In the opinion written in this mandamus case, a statement of facts with the issues considered and determined also appears, as follows:

“The principal suit is based upon joint promissory-notes executed by Silas W. Tyler and Fred B. Tyler as copartners. Personal service was had upon Silas. Fred was a nonresident, and certain land was attached belonging to him, the attachment levied, and a proper return made by the sheriff that he had levied upon the land of Fred B. Tyler. Silas appeared and interposed as a defense the statute of limitations and a discharge in bankruptcy, which defense was held to be valid. A copy of the affidavit for attachment, etc., was served upon Fred at his foreign residence. He did not appear. The sequence of the pertinent events is as follows: February 7, 1906, writ of garnishment, returnable February 27th; February 9, 1906, writ personally served; February 28, 1906, default for want of appearance; July 3, 1906, judgment in principal case; September 12, 1906, judgment in garnishment and issue of execution; September 13, 1906, execution levied upon property; November 27, 1906, motion to vacate judgment in garnishment; April 6, 1908, motion argued before respondent; October 5,1908, motion denied.
“ The circuit judge returns that the relator did not appear in answer to the writ of garnishment; that the plaintiff recovered judgment against the principal defendant, Fred B. Tyler; that the proceedings in both the garnishment and principal suits were regular on their face. He denied the motion to set aside the judgment because (a) the application was not made within six months after personal service, as required by Circuit Court Rule 12 (131 Mich, xxxv), and therefore came too late; (6) that relator could not impeach the judgment in the principal case by contradicting the record collaterally on motion; (c) that certain correspondence, which passed between counsel for the plaintiff and the relator, did not mislead it into believing that no judgment would be rendered against it.”

Later the defendants in garnishment, by writs of error, undertook to remove the case to this court for review. These writs were on motion dismissed. Bliss v. Caille Bros. Co., 157 Mich. 258 (121 N. W. 756); s. c., 158 Mich. 212 (122 N. W. 543).

[180]*180While that case was pending in this court, complainant, one of the said garnishee defendants, filed the bill of complaint in this cause in Gladwin circuit court, in chancery.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Floyd v. Roberts
50 N.W.2d 184 (Michigan Supreme Court, 1951)
Baucom v. Friend
52 A.2d 123 (District of Columbia Court of Appeals, 1947)
Dodge v. Detroit Trust Co.
2 N.W.2d 509 (Michigan Supreme Court, 1942)
Fletcher v. Wheat
100 F.2d 432 (D.C. Circuit, 1938)
Hakes v. Kent Circuit Judge
182 N.W. 77 (Michigan Supreme Court, 1921)
Harnau v. Haight
179 N.W. 473 (Michigan Supreme Court, 1920)
Burgard v. Burgard
141 N.W. 549 (Michigan Supreme Court, 1913)
Steele v. Bliss
134 N.W. 1013 (Michigan Supreme Court, 1912)

Cite This Page — Counsel Stack

Bluebook (online)
134 N.W. 1013, 170 Mich. 175, 1912 Mich. LEXIS 810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steele-v-bliss-mich-1912.