text:
    Caliphurnia B. Phelps et al v. Robert E. Frazer, Circuit Judge of Wayne County.
    Garnishment j'rocehdings — Dismissal OF FOR LACHES IN BRINGING STATUTORY ISSUE TO TRIAL.
    Relators applied tor mandamus to compel the respondent to vacate an order dismissing garnishment proceedings for failure of relators to bring statutory issue to trial. An order to show cause was granted, and on the hearing had October 20,1896, on petition and answer a writ of mandamus was denied.

      Boioen, Douglas (£• Whiting, for relators, contended:
    1. That the motion to dismiss was based upon the statement that relators had failed to have the statutory issue placed on the court docket, and to have the trial of the same continued from term to term; that in answer to said claim relators say that said issue was not reached for trial during the term at which judgment against the principal defendant was taken; that said issue was placed on the court docket for each of the subsequent terms, but was not reached, nor had it been reached when said motion was made; that no attempt to continue said proceedings from term to term was made except by serving notices of trial of said issue on the garnishees, filing notes of issue, and having the notes placed upon the court docket; citing Blake v. Hubbard, 45 Mich. 4; Webber v. Bolte, 51 Id. 114.
    TThe brief follows the petition as to the issue being on docket, but the respondent in his answer squarely traverses said allegation. Editor.]
    2. That as relators’ attorneys, at the request of the garnishees, drafted and filed the disclosure, upon which their names appeared as attorneys for the garnishees, said attorneys became and were attorneys of record for said garnishees; that said garnishees could not make said motion to dismiss unless by and with the consent of said attorneys, or until after .such time as some other attorney had been substituted in their place as attorney for said garnishees; that it appears that, although said attorneys had requested said garnishees to obtain other attorneys to represent them, they liad not done so, or at least had never notified said attorneys to that effect, or had any change made in that regard on the record, and, indeed, no such change has as yet been made, as Wisner & Ilarvey, the attorneys who made said motion, appeared specially for the purposes of said motion.
    3. That the case had been continued from term to term in such a way as to meet any statutory requirement; that though this had not been done, the motion to dismiss was improper so long as the appearance of said garnishees had been entered of record.

      Wisner & Harvey, for respondent, contended:
    1. That tlm answer of the respondent shows that the statutory issue was not on the docket at the. term in which judgment was rendered in the principal suit, nor at any subsequent term; that How. Stat. § 8070, contemplates a speedy trial of the question of the liability of the garnishee defendant; citing Blake v. Hubbard, 45 Mich. 1; Kelly v. Bertrand, 67 Id. 332; Meigs v. Weller, 90 Id. 629.
    2. That in the latter case the Court held that the attorney for the garnishee waived the right to have the proceedings dismissed by accepting an attorney fee on a continuance; that in the case at bar there was no waiver; that it appears from the disclosure that a third person is interested in the money due from the garnishee defendants, and this Court held in Blake v. Hubbard, 45 Mich. 1, that a garnishee cannot waive the rights of other persons.
   The facts as established by the petition and answer were:

a — That on or about January 20, 1894, relators sued the Detroit Pie Company in assumpsit in the Wayne circuit court, and garnished Harry J. Sequin and Henry J. Boerth, said writ of garnishment being returnable February 6,1891.

b — That on February 19, 1894, the garnishees filed their disclosure, which was indorsed as follows:

“Ho. 33070.

Wayne Circuit Court.

Calijihurnia B. Phelps et al.,

vs.

Detroit Pie Company,

Principal Defendant,

Harry J. Sequin, Garnishee Defendant.

Disclosure.

[The same indorsement was set up in the petition for mandam/us as appearing on said disclosure, with the addition of the words “Garnishee Defendants,” after word “For” at commencement of blank line. It appears by an examination of the petition for mandamus and the memorandum brief filed in support thereof that Bowen, Douglas & Whiting use a paper back for papers filed by them in their cases, at the bottom of which their firm name is printed as above below the words “Dep. Clerk.” — Editor.]

MOTION AND MANDAMUS CASES.

Filed Feb. 21,1894.

Wm. E. Fenwick, Dep. Clerk.

Bowen, Douglas & Whiting,

Attorneys and Counselors,

Detroit, Michigan.

For....................”

That in said disclosure, which was made by Harry J. Boerth for his firm, said garnishees denied that at' the time of the service upon them of the writ of garnishment they were indebted to the principal defendant; that they further stated that at the time of such service they had in their possession certain personal property, describing it, used in the pie baking business, which they had taken from the principal defendant on September 18,1893, by bill of sale, subject to a chattel mortgage for $1,800, dated July 28, 1893, given by the principal defendant to Mary Neubronner, to whom, prior to such service, they had paid to apply on said mortgage the sum of $800; that, except as thus stated, they had not in their hands, or in their custody or under their control, any goods, chattels, credits, money and effects belonging to the principal defendant.

o — Relators stated in their petition that said disclosure was, at the request-of said garnishees, drawn by Bowen, Douglas & Whiting, the attorneys for relators, as to which matter the respondent in his answer averred a want of knowledge, but attached to said answer a certified copy of the affidavit of one of the garnishees, filed at the time of the hearing of the motion to dismiss the garnishment proceedings, in which he averred that the garnishees did not appear by attorney.

d — That on January 30, 1895, judgment was rendered in favor of relators in the principal suit for $1,497.07 damages, with costs to be taxed.

e — That the statement in said petition that relators, through their attorneys, requested said. garnishees to obtain other attorneys to represent them is true, but said request was not made until March 20, 1896.

/ — That the statutory issue framed in said garnishment proceedings was not on the docket for the January, April, June, and September, 1895, nor the January, 1896, terms of court; that the records of said court do not show that notes of issue were filed for said terms, nor that said statutory issue was continued for trial from term to term.

g — That on March 26, 1896, said garnishees, by Wisner & Harvey, their attorneys, who appeared for the purposes of said motion only, moved the court to dismiss said garnishment proceedings for the reason that four terms of court had intervened since the term at which relators recovered judgment, and relators had failed to have said statutory issue placed on the docket of said court for trial, or to have the same continued from term to term.

it — That on April 6, 1896, said motion was argued before respondent by F. C. Harvey, counsel for said garnishees, and by counsel for relators, and submitted for decision; that on June 23, 1896, respondent granted said motion, with all of the costs thereof against relators.


source: Caselaw Access Project

license: Public Domain

text:
    Henry G. Dozer v. William N. Cross, Clerk, Samuel R. Tucker, Chairman, and the Roard of Supervisors of Cheboygan County.
    Salary — Op prosecuting attorney-power OF BOARD OF SUPERVISORS TO REDUCE AFTER ONCE FIXING BY THEM.
    Eelators applied for mandamus to compel the payment to him of a portion of his salary as prosecuting attorney, which, by order of the respondent board, had been deducted from his yearly salary as theretofore fixed by said board, by reason of relator’s absence from the State on account of ill health and consequent inability to perform for a time the duties of his said office, which duties under an arrangement made by him were performed by other attorneys, whose bills therefor were allowed to them by said board at the time the order for said deduction was made. An order to show cause was granted, and on tiie hearing had October 20, 1896, on petition and answer a writ of mandamos was granted.

      Henry G. Dozer, in pro per, contended:
    1.That under How. Stat. § 558, which provides that “the prosecuting attorneys shall severally receive such compensation for their services as the board of supervisors of the proper county shaH, by an annual salary or otherwise, from time to time order and direct;” and How. Stat. § 508, which provides “that the annual salaries of all salaried county officers, which are now or may be hereafter by law fixed by the board of supervisors, shall be fixed by said board on or before the 31st day of October prior to the commencement of the term of said officers,, and the same shall not be increased or ’ diminished during the term for which such officers shall have been elected or appointed,” the respondent board at its October, 1890, session fixed the salary of the prosecuting attorney of Cheboygan county at $600 per year; that the statute last cited is mandatory, and when the respondent board had performed its duty thereunder it,exhausted its power, and could not thereafter reduce or diminish the salary so fixed during the term for which said salary had been fixed as aforesaid; citing Dowvielle v. Supervisors of Manistee County, 40 Mich. 589; Knappen v. Supervisors of Barry County, 46 Id, 23,
    2. That if the accounts which the respondent board allowed were legal and proper charges against the county, it exhausted its power in allowing the same, and had no legal authority to de duet the amount thereof from relator’s salary; that if said charges were illegal or unjust the duty of the board to disallow them was plain; that in any event it had no legal authority to diminish relator’s salary as prosecuting attorney by deducting said claims or any sum whatever therefrom.
    3. That How. Stat. § 483, subd 9, provides that the board of supervisors shall have power “to prescribe and fix the compensation for all services rendered for, and adjust all claims against their respective counties, and the sums so fixed and defined shall be subject to no appeal;” that the board is a creature of the statute, and has no powers except those conferred upon it by the statute; that any attempted proceedings beyond the provisions of the statute are absolutely void; that when the board attempts to allow any claim against any individual or corporation aside from the county which it represents, such proceedings are absolutely without legal sanction, and therefore void.
    4. That the salary of prosecuting attorney having been fixed by the respondent board prior to the commencement of the term of that officer for 1891 and 1892, find the duties of that office having been faithfully performed during the entire of said term by relator, the attempt of said board to diminish said salary affords no legal excuse to the chairman and clerk of said board for their refusal to draw the re" quired warrant upon the county treasur" er for the remainder of said salary.
    5. That mandamus is the proper remedy; citing People v. Board of Auditors, 5 Mich. 223; McBride v. City of Grand Rapids, 47 Id. 236; that interest from time of demand may be allowed when the sum demanded is such a settled claim as would sustain a recovery at law; citing Martin v« Tripp, 51 Mich. 184.
    6. That in People v. Miller, 24 Mich. 458, where the respondent was convicted of an unlawful intrusion into the office of treasurer of Wayne county, and a motion for judgment for damages was opposed on the ground of the refusal of the trial judge to allow in reduction thereof evidence of the value of respondent’s services, or of the earnings of the relator in other pursuits while kept out of office, Mr. Justice Campbell, speaking for the Court, said:
    “The official salary is not made dependent on the amount of work actually (lone by the treasurer, and does not require bis personal services to any considerable extent. He v.ould not forfeit it by leaving the bulk, or possibly the whole, of his substantial duties to the deputy and clerks. He would not necessarily lose it even by misconduct unless removed from oiliee. It is given no doubt on the theory that a treasurer is worth so much to Hie county, but not upon any specific apportionment whereby the value of his time and his sagacity, and his eharacier, and his business knowledge can be determined separately. Hut whatever may be the basis of the allowance, it is fixed upon Hie theory that it will usually be paid to a person who has been «elected by the electors or appointing power as a desirable incumbent. The amount of personal labor done, by the officer can form but a small part of his claim-to the salary in such an office as this, and lie may be much less competent than his deputies.”

      George E. Front, Acting Prosecuting Attorney, for respondent, contended:
    1.That the following statutes bear upon, the question of the duties to be performed by prosecuting attorneys:
    a — How. Stat. § 551, which provides that “the prosecuting attorneys shall in their respective counties appear for the State or county, ami prosecute or defend in ail courts of the county all prosecutions, suits, applications, and motions, whether civil or criminal, in which the State or county may be a party or interested.

      b - Section 55 of the tax law of 1889, 1891, which made it the duty of the prosecuting attorney to prosecute, on the part of the State, all proceedings for the sale of delinquent tax lands, and provided that in case of his refusal, neglect, or inability lo do so the court should appoint some competent person to take charge of and prosecute the. same, who should bo paid by the county; and that the board of supervisors might employ somo competent person to prosecute such proceedings or assist therein.
    c — 3 How. Stat. § 55i)o, which provides “that in all criminal proceedings removed to the Supremo Court by appeal or otherwise, it shall be the duly of the prosecuting attorney of the county from whence any cause is so removedlo appear in behalf of the people therein, and with the advice and assistance of the Attorney General to conduct such cause in such court, and for his services in any such, case, such prosecuting attorney shall, in addition to his regular sala: y, receive a reasonable compensation, including his expenses in traveling to and from and on his attendance in such court, to be ascertained and determined by the Board of State Auditors, and paid by the State out of any funds belonging to the State not otherwise appropriated. Provided, however, that the expense of printing any brief or argument prepared in any such ease shall be paid by the county from which the ease is removed.”
    2. Under the following decisions of ibis Court a writ of mandamus should be denied: People v. Judges, 1 Doug. 302; People v. Wattles, 13 Mich. 44(3; People v. Township Board, 14 Id. 30; People e. Oireuit Judge, 19 Id. 29(5; People v. Supervisors, 3(3 Id. 377; Peck v. Supervisors, 47 Id. 477; Post v. Township Board, 153 Id. 323.
    3. That instead of the county of Cheboygan owing anything to relator for balance of salary, he has been largely overpaid; that the respondent board allowed relator, and ho has been paid on accounts by him presented, • mainly for services the performance of which legally devolved upon him as prosecuting attorney, the sum of $386.06, which sum, with the sum of $101.95 allowed and paid to the attorneys who performed his duties during his absence, largely overpays said claimed balance of salary.
   The facts as shown by the petition and answer were:

a — That in November, 1890, relator was elected to the office of prosecuting attorney of Cheboygan county, the duties of which he discharged during the term for which he was elected.

b — That at their annual session in October, 1890, the board of supervisors of Cheboygan county fixed the salary- of prosecuting attorney at the sum of $600 a year.

c — That for a number of years last past it has been the custom and practice in said county for the county clerk at the close of each quarter to draw and sign orders on the county treasurer for $ 150 in payment of the salary of the prosecuting attorney for such quarter.

d — That since January 1, 1891, the respondent Cross lias been clerk of Cheboygan county. . . .

«--That relator in the spring of 1893, as alleged in his petition, by reason of ill health caused by overwork as prosecuting attorney, was obliged to discontinue all work, and on or about April 5, 1892, left for the South, where he remained for a time; that his health having improved he returned to the county of Cheboygan, and on May 28, 1892, resumed the entire business of his office; that while ill and unable to leave his house, and before leaving for the South, one C. S. Reilly, an attorney of said county, appeared for the people in a justice court criminal case, for which services lie charged the county $11.95; that relator, about April 1,1892, agreed with John F. Chambers, an attorney of said county, that he should attend to [such of the business pertaining to relator’s said office as could not be postponed until relator’s return for the compensation of $25 per month, a bill for which said attorney should present to the board of supervisors of said county for allowance; that during relator's absence he gave his said official business his personal attention and counsel by correspondence, and furnished the required affidavits and procured the continuance of all important cases ponding in court, and belonging to said business.

[Respondents in their answer say that they have no personal knowledge as to the reasons which impelled relator to leave the county of Cheboygan in the spring of 1892, nor as to what, if any, arrangement he made with Attorney Chambers to fill his place as prosecuting attorney, nor how or by what means Attorney Reilly performed some of relator’s official duties, but they claim as matter of law that such reasons are immaterial; that if relator became unable or incapacitated to perform his official duties so that such duties had to be performed by others at the expense of the county, relator could not legally or equitably claim his stipulated compensation during such period of inability. Editor.]

/ — That the board of supervisors of Cheboygan county at their annual meeting in October, 1892, allowed the bill of Attorney Reilly; also a bill in favor of Attorney Chambers for $90 for services rendered by virtue of his agreement with relator, subject to the proviso that the amount of said bills should be deducted from the salary of relator.

<7 — That relator made repeated demands upon the respondents Cross and Tucker to draw, sign, and deliver to him their order on the county treasurer for said $150 back salary, all of which demands were refused; that finally and on January 6,1893, relator called the attention of said board of supervisors to the negleet of said clerk and chairman to draw and sign said order, and requested said board to authorize and instruct said officers to comply with relator’s request; that said board refused to take any action in the premises; that on June 22, 1896, relator again challenged by a written communication the attention of said board to said matter, and requested them to cause said order to be drawn and signed; that said board refused to take any action on said communication, or to allow said bill, but laid the same on the table indefinitely.

[Respondents in their answer claim that the board of supervisors in 1896 had no legal authority to pass upon relator’s claim, inasmuch as the whole matter had been before the board in 1892 and 1893, and duly passed upon by said board.]

hr — Respondents in their answer set up as affirmative matter of defense the allowance to relator upon certain accounts by him presented to the board of supervisors for services rendered by him as prosecuting attorney, the performance of which in the main legally devolved upon him by virtue of his office, aggregating $1,096.66, the sum of $386.06, and averred that said sum, as also the sums paid to Attorneys Reilly and Chambers, should be held chargeable against relator, and if thus applied would largely overpay his unpaid salary; that these are matters which cannot properly be passed upon and adjudicated on relator’s petition, but should be left for adjudication in a suit at law. Respondents added to their answer a general demurrer to relator’s petition.


text:
    Nathan T. Cummins v. Fred J. Russell, Circuit Judge of Muskegon County.
    Bill op particulars — In action por NEGLIGENTLY SETTING A PIRE.
    Relator applied for mandamus to compel the respondent to set aside a judgment of non-suit entered in an action brought against a railway company to recover damages sustained by relator by reason of the negligent setting of fire by the defendant upon its right of way, which communicated to and destroyed plaintiff’s property, because of .the failure of the plaintiff to furnish a bill of particulars showing the amount of damages claimed for each item or kind of property alleged in the decleration to have been destroyed. An order to show cause was denied October 6, 189(5.

      Arthur Jones, for relator, contended:
    1. That defendant was not entitled to a bill of particulars; citing Everett v. Girquit Judge, 39 Mich. 437; liehrig v. Peters, 41 Id. 475; Rhadock v. Plank Road, Go., 79 Id. 7; Van Vrankenv. Circuit Judge, 85 Id. 140.
   The facts as alleged in the petition for mandamus were:

ctr — That on December 7, 1895, relator commenced a suit in the circuit court for Muskegon county against the Chicago & West Michigan Railway Company for the purpose of recovering certain damages by him sustained by reason of the destruction of certain property owned by him on his farm in the township of Fruitport in said county (describing the land) by fire, alleged to have been negligently set upon defendant’s right of way, and communicated to said property.

h — 'That for an allegation of the damages by him sustained plaintiff in his declaration averred that “said fire burned, injured, and destroyed about 90 rods of post and wire fence and about 60 rods of log fence, about 15 acres of green standing timber of various kinds, and burned and injured the soil on about 35 aeres of valuable land, and partially destroyed the fertility thereof, and burned and destroyed about two acres of meadow land, burning the roots of the grass growing therein, and burning the soil thereof, all on the aforesaid lands of the plaintiff.” That the amount of damages sustained was not specified, except by a general averment at the close of each count, “that by reason of the negligence aforesaid the plaintiff had been injured as aforesaid to his damage of one thousand dollars.”

e — ’Chat on January 27, 1896, the defendant caused a plea of the general issue to be filed to said declaration.

d — That on April 17,- 1896, the defendant, through its attorneys, demanded a bill of particulars of the particular damages which plaintiff claimed to have sustained as generally averred in his declaration.

e — That the case was continued over the April, 1896, term of court upon the motion of the defendant on account of the absence, as alleged, of a material witness.

/ — That on October 1, 1896, the ease came on for trial upon the issue joined therein; that relator was present with his witnesses, and the defendant was also there; that after a jury had been called and sworn, and relator as a witness in his own behalf had testified as to his residence and occupation, the counsel for defendant objected to the introduction of any evidence in the case on the part of the plaintiff for the reason that he had not complied with said demand for a bill of particulars; that counsel for relator contended that under the rules of practice he was not required to furnish said bill of particulars, which contention was overruled by the respondent, who refused to permit any evidence to be taken under the declaration, whereupon relator was obliged to and did submit to a non-suit with leave to move to have the same set aside; that a motion to that effeet was afterwards entered and argued, and denied.


text:
    The People, ex rel Blanch Osier, v. Martin Kallendar, Sheriff of Gogebic County.
    Criminal Law — Arrest of respondent FOR ASSAULT AND BATTERY AFTER CONVICTION FOR SAME OFFENSE.
    The respondent petitioned for a writ of certiorari to review the order of the circuit court of Gogebic county granting relator’s application for a mandamus to compel respondent to serve a warrant, issued on her complaint, for assault and battery, the respondent named in said warrant having been convicted of the same offense, and having paid a nominal fine imposed by the justice of the peace who issued the first warrant, which proceedings, as claimed by the relator, were collusive. The petition of the respondent was denied October 20, 1896.

      G. E. Miller, for respondent, contended:
    1. That relator has no such interest in the act, the performance of which is sought to be enforced, as makes her a proper relator in said mandamus proceeding; that said act is the performance of an alleged publie duty by a public officer, in the performance of whicli the public alone has an interest; that mandamus will not lie at the instance of a person who has no interest in the performance of the act sought to be enforced separate from the interests of the public at large; citing Smith v. Gity of Saginaw, 81 Mich. 123, and cases cited.
    2. That the making before the justice of the peace of a complaint as the basis of the warrant the service of which is sought to be enforced not being admitted in the answer of the respondent, and there being no proof of that fact before the circuit court, it was error to grant the mandamus asked for; that where the return shows that the respondent has no knowledge concerning the facts necessary to relator’s case, it will be sufficient to put such fact in issue; citing People v. My an, 17 Mich. 159; that no issue having been framed, and the case having been heard on petition and answer, the facts set up in the answer must be taken as true; citing Double v. McQueen, 96 Mich. 39.
    [Supreme Court Rule No. 63 provides that “in proceedings for mandamus, where an order to show cause has been made, the respondent must answer fully every material allegation of the petition, and every material averment not so answered may be taken admitted by the respondent to be true as alleged.” Editor.]
    3.That the warrant in question was not issued at the instance of the prosecuting attorney of Gogebic county; that no security for costs was filed; that since the passage of How. Stat. § 7135a, which makes it unlawful “for justices of the peace to issue warrants in any criminal eases, except in cases not cognizable by justices of the peace, or breach of the peace committed in the presence of the officer making the arrest, until an order in writing allowing the same is filed with such justice, and signed by the prosecuting attorney for the county, or unless security for costs shall have been filed with said justice: Provided, this act shall'in no way limit or affect the force of section 11 of Act No. 259, Laws of 1881, as to security for costs,” — the prosecuting attorneys for the various counties have the right to stop any prosecution in actions cognizable by justices of the peace where no security for costs has been filed; that when a warrant has been issued for such an offense, without the filing of such security or order, the sheriff in whose hands it is placed cannot be compelled to make such service against the advice of the prosecuting attorney.
    [Section 11 of Act No. 259, Laws of 1881, being How. Stat. § 2280, provided that whenever complaint should be made to any justice of the peace, or police justice, of any violation of any of the provisions of the liquor law of 1881 ,he should not require security for costs to be given, etc. This act was superseded by the liquor law of 1887, section 23 of which is the same as the section herein-before cited, and limited the jurisdiction of justices of the peace in eases arising thereunder to that of examining magistrates. Editor.]
    [The petitioner in his answer to an order to show cause issued on relator’s application neither admitted - nor denied the allegations in the petition as to the commission of said assault and battery, and the circumstances attending the same, but did admit that relator on the following day laid the matter before the prosecuting attorney, and on his advice went before a justice of the peace at Ironwood and made a complaint against Clark; and on information and belief further admitted that before the service of the warrant issued on said complaint the prosecuting attorney ascertained that Clark had been brought before a justice of the peace of Watersmeet upon a regularly issued criminal warrant charging him with assault and battery, had been convicted upon said charge, and paid the fine and costs imposed by said justice; and further admitted the writing of the letter by said justice to relator, as alleged in her petition. The petitioner left relator to her proofs as to having laid her case before Attorney Norris, the advice given her by him, her complaint to Justice Haggerson, and the issuance of a warrant on said complaint, but admitted that said warrant was plaeed in petitioner’s hands as sheriff, and that he refused to rerve the same unless paid an amount sufficient to pay the expenses incurred by him in traveling from Bessemer to Watersmeet in searching for said Clark; and alleged that he had been advised by the prosecuting attorney that he would oppose the payment by the county of petitioner's fees and expenses incurred in making such arrest. Petitioner alleged in this connection that when the warrant was plaeed in his hands, anfl before he had consulted with the prosecuting attorney, he made a trip to Watersmeet for the purpose of arresting Clark; that he was unable to find him; that he paid his own expenses; that afterwards he was advised by the prosecuting attorney that the warrant ought not to be served for the reason that Clark had been already tried and convicted for the same charge; that the prosecuting attorney had made sufficient investigation of the matter to convince him that the trial thus had could not be proved to have been collusive, and that Clark could not be again arrested for the same offense. Editor.]

      4. That it appears from the record that the respondent named in said warrant had been tried, convicted, and punished for the same offense as that charged therein; that the prosecuting attorney of Gogebic county had investigated the matter of the alleged offense, and ascertained that such conviction was regular, legal, and without collusion; that under these circumstances he was authorized to instruct the respondent sheriff not to serve said warrant at the expense of said county; that there is nothing in the case to show the circumstances attending the alleged assault; that although said circumstances are set forth in relator’s petition, respondent in his answer having left relator to her proof upon that subject, and no proof having been offered, there is nothing to show what said circumstances were, or any reason why the respondent in said warrant should be again arrested at the expense of the county for an offense for which he has already been tried and punished.
    5. That Beecher v. Anderson, 45 Mich. 543, has no application to this proceeding; that in that case the offense charged was not triable by a justice, no written complaint or security for costs was required, nor was it necessary that the prosecuting attorney should have interposed at all; that that case was decided prior to the passage of How. Stat. § 7135a; that under the law as it existed when the Beecher v. Anderson case was planted the prosecuting attorney, unless called upon, had nothing to do with cases triable by justices of the peace; that in the case at bar the statute contemplates that security for costs shall be furnished in all eases so triable, unless their prosecution is authorized by the prosecuting attorney; that while the respondent is not allowed to raise this question, we know of no reason or decision why the public authorities may not raise it at any stage of the proceedings.
   The facts as set forth in the petition for certiorari were:

1. That on August 18, 1896, the relator applied to the circuit court for Gogebic county for a mandamus, in which application she alleged:

a — That on June 23, 1896, at Waters-meet in said county, one Tell Clark struck relator on the head with a large stone and knocked her down; that he then kieked her in the face, breast, and other parts of the body; that at the time he made the assault relator was crossing the main street from the post office to the depot; that said assault was unprovoked; that on the following day relator laid the matter before the prosecuting attorney of the county; that on his advice she went before a justice of the peace of the county, and made a complaint against said Clark; that on June 30,1896, said justice wrote her that he had been informed by said prosecuting attorney that Clark had been once tried before a justice of the peace of the same county for the same offense, and that the writer could not proceed against him a second time; that relator should have stated such fact when she made her complaint, and the writer would have given her the same advice contained in said letter; that on July 2, 1896, relator laid the case before H. M. Norris, of the firm of Button & Norris, attorneys at Bessemer, in said county, who advised her to go before W. J. Haggerson, a justice of the peace of Bessemer, and make a complaint against said Clark for an assault and battery, which relator did; that on that day a warrant was issued on said complaint, and placed in the hands of petitioner, who was sheriff of Gogebic county, for execution; that said warrant is now in his hands, but he refuses to serve it unless relator pays him for all his trouble in making such arrest; that said sheriff claims that said prosecuting attorney has informed him that the county wiH not pay his fees for making said arrest.

[On information and belief the petitioner admitted, in his answer to the order to show cause, the proceedings had before Justice Johnson, except as to the amount of costs imposed on Clark, of which fact he averred a want of knowledge. As to the alleged purpose of said prosecution he left relator to her proofs; also left her to her proofs as to the action of deputy sheriff Kern, and the statement made by him to Clark; also as to whether or not relator when she went to the prosecuting attorney had knowledge of the action before then taken against Clark; also as to the information given her by the wife of the other justice to whom application was made for the arrest of Clark. Editor1]

[The substance of the answer, so far as makers of fact are concerned, is set forth in connection with the averments of relator in her petition, in which answer petitioner raised the same legal objections urged by his counsel in the brief hereinbefore set forth. Editor]

b — That relator had been informed that one Luke Kern, a deputy sheriff of Watersmeet, either on the day of the assault or the following day, took said Clark before one A. D. Johnson, a justice of the peace of Watersmeet, and made complaint against him; that said Johnson, upon Clark’s plea of guilty, imposed a fine of $1 and $1 costs; that if such proceedings were had it was for the purpose of shutting off a prosecution of Clark by relator; that relator was informed, and so charged, that said deputy sheriff, after seeing Clark knock her down without any attempt at making haste, crossed the street to'where said Clark was kicking relator, and said to him, “There Tell, you have given her enough;” that said deputy and Clark then went .across the street, and the deputy bought a drink for Clark; that relator at the time of going to the prosecuting attorney did not know that any action had been taken against Clark; that she has been informed by the wife of another justice of the peace of Watersmeet that the parties came to her husband before going to Johnson, and asked him to take a complaint against Clark, but he yofused to have anything to do with the matter, and they went to Johnson.

2. That such proceedings were thereafter had as resulted in the issuance of an order to show cause, the filing of an answer by petitioner thereto, a hearing upon said relator’s petition and said answer, and the granting of the mandamus asked for.


text:
    Tobias Sigel v. George S. Hosmer, Circuit Judge of Wayne County.
    Capias — Sufficiency of affidavit to HOLD TO BAIL.
    Relator applied for mandamus to .compel the respondent to vacate an order to hold to bail, enter an order for the release of the relator, and annul his bond given to the sheriff. An order to show cause was waived by the respondent, and on October 21, 1896, a writ of mcmdanrms was granted.

      Morse Bohnert, for relator, contended:
    1. The affidavits fail to set forth facts in detail having the weight and dignity from which, if in evidence, a jury could draw conclusions on which to base a verdict for plaintiff; citing Sheridan v. Briggs, 53 Mich. 569.
    2. Before a recovery can be had plaintiff must show, by competent testimony, that the treatment given constituted malpractice; that the only evidence admissible to prove malpractice is the testimony of expert witnesses, namely, physicians; citing Wood v. Barker, 49 Mich. 295; Spaulding v. Bliss, 83 Id. 311; that there is no affidavit attached of any physician saying, or giving it as his opinion, that the treatment was insufficient or improper.
    3. That an affidavit to hold to bail must set up facts on personal knowledge tending to establish the wrong complained of; citing Sheridan v. Briggs, 53 Mich. 569; Stensrud v. Delamater, 56 Id. 145; Howell v. Circuit Judge, 88 Id. 366; Moyle v. Circuit Judge, 97 Id. 636; that this case is ruled by McCrea v. Circuit Judge, 100 Mich. 375.

      B. C. Barnes, for respondent, contended:
    1. That the affidavit of the plaintiff sets forth in detail the facts and circumstances of her treatment by the relator, and charges directly a criminal operation, resulting in a miscarriage, which facts and circumstances are alleged to be within her personal knowledge.
    2. That the facts and circumstances of the case require no expert testimony to give them the dignity of evidence; that plaintiff’s affidavit is a substantial compliance with the requirements of the statute, and is clearly within the rule laid down in Watson v. Judge, 40 Mich. 729; Pease v. Pendell, 57 Id. 315; Hatch v. Saunders, 66 Id. 181; that a criminal operation being alleged against the relator, the affidavit is sufficient since it states facts that would make a prima facie case on a criminal trial; citing Pease v. Pendell, 57 Mich. 315.

      Morse Bohnert, for relator, in answer to the contention of respondent’s counsel, contended:
    1. That respondent’s brief is based on the theory that plaintiff’s affidavit charges a criminal operation; that the affidavit does not so charge, but does charge that the treatment was given by the relator for the purpose of curing a certain illness from which plaintiff was suffering; that plaintiff engaged relator to treat her for an illness which she describes as “something wrong with her womb as she could not walk well;” that relator accepted and entered upon such employment only to treat her for such illness; that plaintiff then alleges the treatment but only in a very general and vague way, and charges that the treatment was reckless, negligent, careless, wanton, rough, and unnecessary in and about said curing; that thereby and because of said reckless, negligent, and unnecessary operation, and not for any other cause, a miscarriage happened; that plaintiff does not charge an intentional act done for the purpose of procuring a miscarriage, but only charges that an unneeessai-y miscarriage happened by reason of the recklessness and carelessness of such treatment; that she does not claim that she engaged the relator for the purpose of having him procure a miscarriage, but that she engaged him to treat her for a certain illness, and that relator, in and about such treatment, acted carelessly and unskillfully, and thereby produced an unintentional miscarriage.
    2. That the affidavit of Dr. Kemberling says nothing about the treatment; that no intent to procure an abortion being charged it is simply a question of whether or not the relator used due and proper skill and care; that the principles laid down in relator’s original brief determine the case, and the mandamus should issue.
   The facts as alleged in the petition for mandamus were:

1. That on July 7, 1896. the relator was arrested upon a capias ad respondendum issued at the suit of Augusta Pieschke from the circuit court of the county of Wayne; that in the affidavit to hold to bail made by said plaintiff it was averred:

[A jurat was appended to said affidavit, stating that the affiant made oath that she had heard said affidavit read, knew its contents, and that the same, was true of her own knowledge, except as to those matters which are therein stated to be on information and belief, and as to those matters she believed them to be true. Editor.]

a — That affiant would say on her personal knowledge that on April 29, 1896, at the eity of Detroit she, at the request of relator, a physician and surgeon, employed him to attend affiant, and to bestow the oare, diligence, and attendance of relator as such physician in and about endeavoring to cure affiant of a certain illness under which she then labored for reward to be thereafter paid to relator, who accepted and entered upon such employments such physician.

& — That relator not regarding his duty, but contriving and intending to injure affiant in this respect, did not nor would use due and proper care, skill, or diligence in and about endeavoring to cure affiant of said illness, but on the contrary thereof conducted himself in an ignorant, unskillful, and negligent manner in that behalf in this: that on the day aforesaid relator inquired of affiant as to the cause of her illness; that affiant told him she did not know, that there must be something wrong with her womb as she could not walk very well; that relator then and there examined affiant, and said to her that she was in a family way; that there was something there that must come away; that it was either a chunk of blood or the afterbirth; that relator placed five pills in affiant’s mouth, at the same time telling her to use a syringe every two horns.

c — That on April 39, 1896, relator visited affiant; that he brought with him his surgical instruments, and without the attendance of any other physician recklessly, negligently, wilfully, carelessly, wantonly, roughly, and unnecessarily introduced said instruments into affiant’s womb, operating upon affiant, taking from affiant large quantities of blood and shreds, thereby lacerating the parts, rupturing the blood vessels thereof, causing the loss of an unusual quantity of blood, and thereby rendering affiant sick, sore, weak, disordered, and dangerously ill for a long space of time from thence hitherto; that at the time of said operation affiant had been pregnant for about three months; that on May 19, 1896, she was prematurely delivered of a child; that the death and premature delivery of said child were caused by the operation unnecessarily performed as aforesaid, and from no other cause; that by reason of the premises affiant became and still is greatly injured in her health and constitution, suffered great and unnecessary pain and anguish, was and is reduced and weakened in body, and her recovery from said illness has been and is thereby retarded and delayed, to her damage $5,900.

2. That one Isaac O. Kemberling made an affidavit, in which it was averred: . •

a — That affiant was a practicing physician of the city of Detroit, and the family physician of plaintiff; that on June 25,1896, he was called to attend plaintiff; that after a careful examination he found plaintiff in a very much exhausted condition; that she was very nervous, and suffering from a constant loss of blood and from a congested uterus, from which blood was then flowing in considerable quantities.

6 — That he was informed by plaintiff, and verily believed that plaintiff, was suffering from the results of a surgical operation performed upon her by relator, and from a miscarriage which occurred on May 19, 1896, as the result of an operation performed upon plaintiff on April 30,1896, by relator, who had been called to treat plaintiff for an illness of which she was then suffering; that at the time of said operation relator introduced surgical instruments into plaintiff’s womb, and took from her large quantities of blood, shreds, etc.; that ever since said operation plaintiff has constantly had a discharge of blood in large quantities; that since June 23, 1896, plaintiff has been and still is under the care of the affiant as attending physician.

[A jurat] in the same form as before given was attached to this affidavit. Editor.J

3. That relator was released from arrest on giving appearance bail as required in the order to hold to bail.

4. That relator moved said circuit court to vacate said order to hold to bail; that saidjmotion was argued before respondent, who on July 27,1896, denied said.motion; that relator has not yet put in special bail in said cause.


text:
    William B. Hall v. Joseph W. Donovan, Circuit Judge of Wayne County.
    Replevin — Description of property-delivery OF TO PLAINTIFF.
    Relator applied for mandamus to compel the respondent to quash a writ of replevin because of an insufficient description of the property to be taken thereunder, and because of the requirement in the writ to deliver the property to some other person than the plaintiff. An order to show cause was denied October 20,1896, mandamus not being the proper remedy.

      J. G. Dickinson, for relator, contended:
    1.That the writ is defective in two particulars, either one of which is sufficient to make it void, namely, it does not describe the goods and chattels to be replevied or any goods and chattels, nor does it require the sheriff to deliver the same to-the plaintiff in the writ, but to a third person and a stranger to the suit; citing How. Stat. § 8320.
    [For eases bearing upon the question of the sufficiency of the description of property in a writ of replevin, see Dillon v. Howe, 98 Mieh. 168, and note; Simmons v. Robinson, 101 Mieh. 240. Editor].
   The facts as alleged in the petition for mandamus were:

1. That relator and Thomas E. Hall are copartners doing business at the city of Louisville, Kentucky, under the name of Hall Brothers.

2. That on September 25, 1896, relator for said Hall Brothers was in possession of a certain stock of dry goods, etc., situate at 90 Woodward avenue, Detroit, Michigan, by virtue of a chattel mortgage given to secure to said firm the payment of the sum of $12,000, which they had theretofore advanced to Henry W. Richardson upon the security of said chattel mortgage, for the purpose of foreclosing the same.

3. That on September 25,1896, a writ of replevin was issued out from the circuit court of Wayne county at the suit of Oliver H. Durrell and others, copartners as Brown, Durrell & Co.; that said writ commanded the sheriff of Wayne eounty to take into his custody “the following goods and chattels, to wit, a quantity of hosiery, underwear, dry goods, and notions,” of the value of $4,700, shipped by Brown, Durrell & Co., and now contained in store numbered 90 Woodward avenue, and now occupied by Henry W. Richardson, one of the defendants herein, and deliver the same to Joseph A. Burns, agent for Oliver H. Durrell, Thomas B. Fitzpatrick, and John R. Ainsley, copartners doing business as Brown, Durrell & Co., plaintiffs herein, if they shall give you security as required by law to prosecute to effect this writ against Henry W. Richardson, doing business as Mammoth Dry Goods Co., Hall Brothers, Emma II. Hall, and Edward B. Wilson, Melvan Larrabee, B. D. Hascall, Jr., John C. Hurter, and Warren C. Stevens, copartners as Wilson, Larrabee & Co., defendants herein, etc.; that by virtue of said writ the said sheriff took from the possession of relator a large quantity of said stock of dry goods, of the value of about $4,000.

4. That thereupon relator moved the court to quash said writ of replevin:

a — Because it was not in the foim required by the statute governing replevin suits.

b — Because it contained no description of any goods or chattels to be seized thereunder.

c — Because it required the delivery of the goods seized thereunder to some other person than the plaintiffs, contrary to the provisions of the statute.

5. That after the argument of said motion, and on October 19, 1896, the same was denied by the respondent.


text:
    Napoleon Paulus v. Roscoe L. Corbett, Circuit Judge of Leelanaw County.
    [See 104 Mich. 42.]
    Capias — Special Bail — Failure of Sheriff to put in and perfect — Amendment OF HIS RETURN SO AS TO SHOW THAT IN FACT BAIL TO THE SHERIFF WAS NOT GIVEN.
    Relator applied for mandamus to compel the respondent to vacate an order allowing the sheriff, who had been ruled to put in and perfect special bail in a capias suit, to amend his return by showing that as a matter of fact bail was not taken by him, it being claimed by the relator that such fact was shown by the sheriff’s original return. An order to show cause was granted, and on the heaving had October 27, 1896, on petition and answer the application was denied.

      Tweddle £ Gross, for relator, contended:
    1.That the statutes under which the proceedings against the sheriff were taken are:
    a — How. Stat. § 7326, which provides that if special bail is not put in and perfected within the time limited therefor, upon filing amaffidavit of such fact, and of the return of the writ served, a rule may be entered, in vacation or term, requiring the officer who made the arrest to put in and perfect special bail within 20 days after notice of such rule.
    b — How. Stat. § 7327, which provides that if special bail is not put in and perfected within the time specified in such rule, upon filing an affidavit of the service of notice thereof, a rule may be entered that an attachment issue against said officer, and such attachment may be issued accordingly.
    c — How. Stat. § 7328, which provides that upon said officer being brought into court on such attachment, the court may by summary proceedings ascertain the amount due the plaintiff, in the same manner as if interlocutory judgment had been entered against the defendant, and may render judgment against such officer for said amount, with the costs of suit and proceedings.
    2. That the return showed that bail had been taken by the sheriff; that such was the construction placed on it by the respondent in his finding, although he sought to avoid it by giving it a different popular construction regardless of the fact that How. Stat. § 7310, provides that if a defendant be committed for want of bail, the officer making the arrest shall specially return that fact; that respondent also sought to avoid the consequences of a legal construction of the return by allowing the sheriff to show that, as a matter of fact, his return was not true, and to have the benefit of that showing by amending his return.
    3. That the following propositions of law are submitted:
    a — That the return of a sheriff to a writ is his official answer under oath respecting the duty enjoined upon him by the writ, and is intended to inform the court what has been done in the premises; citing Browning v. Sanford, 7 Hill, 120.
    6 — That the only construction that can be put on the return in this case is the legal construction, which is that the defendant had been let to bail by the sheriff.
    c — That relator was justified in relying upon said return as made, that being the only source from which he could obtain knowledge of what liad been done by the sheriff; that having relied in good faith upon such return his rights could not afterwards be prejudiced by a showing on the part of the officer that his return was not in accordance with the facts.
    d — That the return of a sheriff is conclusive upon him; that in any controversy between him and the parties to the suit he is estopped from denying the truth of his return as to all matters material to be returned; citing Facey v. Fuller, 13 Mich. 527; Green v. Kindy, 43 Id. 279.
    4. That, as claimed by the respondent in his return, when a defendant arrested on a capias ad respondendum is in custody for want of bail to sheriff, the judgment of a court of competent jurisdiction quashing the writ and discharging the defendant is a complete bar to an action for an escape if such judgment is reversed by the appellate court; but that is not the question involved in this ease; that the question here is whether or not, where the defendant has been let to bail by the sheriff, and judgment is entered in the circuit court quashing the writ and discharging the bail bond, and the cause is remanded to the lower court for further proceedings, can proceedings be had against the officer making the arrest if the defendant fail to put in and perfect special bail; that of this there can be no question; that the filing of the remittitur restores to the circuit court its jurisdiction of the case, and places it in the same condition, subject to the same proceedings, as before the erroneous judgment was rendered; citing Wright v. King, 65 N. W. Rep. 556; Reynolds v. Circuit Judge, 67 Id. 529.
    5. That relator does not ask that the sheriff be required at his peril- to judge of the validity of the judgment of the trial court, or whether' an appellate court will reverse the judgment; that he only asks that the sheriff be bound by his return as made, the same as the parties to' the suit, the trial court, and the Supreme Court in its former decision of the case (Paulus v. Grobben, 104 Mich. 42) were bound by said return; that if either the relator or the sheriff must suffer by reason of the falseness of the return, that the loss fall upon the one whose misconduct has occasioned it; that relator, relying in good faith upon said return, elected to proceed directly against the sheriff, and by this election all other remedies were excluded; citing DeMyer v. McGonegal, 32 Mich. 120; that to allow the amendment would defeat all remedy on relator’s part, and leave him' entirely without relief for the injury sustained.
    6. That conceding the right to grant said amendment, it could only be done on notice given and proper showing made; citing Green v. Kindnj, 43 Mich. 279; that this was not done in this case.

      Pratt d Davis, for respondent, contended:
    1. That the act of the respondent in permitting the amendment to be made was a proper exercise of his power under the statute, and in harmony with the decisions of this Court; citing Barber v. Smith, 41 Mich. 138; Kidd v. Dougherty, 59 Id. 243.
    2. That to now hold that the sheriff could not amend his return according to the facts, and to hold him liable after the case had been dismissed and out of court for the length of time that it was would be to do great injustice when the sheriff himself was in no fault.

      Tweddle d Cross, for relator, in answer to the contention of respondent’s counsel, contended:
    1. That the respondent by his return seeks to justify his action by alleging “that after the writ was quashed, the defendant was discharged from custody, and that the form of the return of the sheriff did not mislead the relator at that time;” that while relator recognizes the rule that the return of the respondent will be taken conclusively as true in so far as it states facts as to respondent’s own action, and what occurred in connection therewith within his own knowledge, he does not admit that said return estops him from claiming that, as a matter of fact, the plaintiff was misled by the form of the sheriff’s return, which fact he claims to be true, otherwise the trouble and expense of these proceedings would not have been incurred.
    2. That notwithstanding the return of the respondent, the circuit judge who presided when the capias was dismissed was also misled by the return of the sheriff in so much as an order was entered in the cause discharging the bail from liability on the bond, which would not have been done had not the parties and the court supposed that bail had been given as shown by said return; that no order was entered discharging the defendant, (irobben, from custody.
    3. That the court can take judicial notice of the fact, not appearing in the petition or answer, that the respondent was not the judge of the circuit court for Leelanaw county at the time the order quashing the capias was made; that said order was made by J. (J. Ramsdell, then circuit judge of said county, hence respondent could have no personal knowledge whether or not the relator at that time was misled by the form of the sheriff’s return.
    4. That relator at the time the capias was quashed had no knowledge of what had been done by the Sheriff by way of serving the writ, except in so far as he was informed by the return of said officer indorsed upon the writ, that being the only legal source to which he could look for such information; that he could not be compelled at his peril to rely upon any information that he might, perchance, have acquired from some other or less reliable source.
   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.


text:
    Alice Price v. George S. Hosmer, Circuit Judge of Wayne County.
    Appeal from probate court — Dismissal of for failure to file transcript IN CIRCUIT COURT.
    Relator applied for mandamus to compel the respondent to set aside an order dismissing her appeal from the refusal of the commissioners on claims to allow her claim filed against the estate of Andrew P. Coulter,' late of Wayne county, deceased, because of relator’s failure to file in the circuit court within 30 days after the appeal was taken the certified transcript as required by 3 How. Stat. § 6782. An order to show cause was granted, a hearing had November 10, 1896, on petition and answer, and on November 12, 1896, a writ of mandamus was denied.

      JS. hi. Sellers, for relator, contended:
    1. That the claim of appeal was regularly made, the required bond filed, and the appeal allowed; that the only objection urged in support of the motion to dismiss the appeal was that the exemplification of the record was not filed in the circuit court within the statutory 30 days; that this same question arose in Snyder v. Circuit Judge, 80 Mich. 511, and this Court said:
    “We are disposed to give statutes allowing appeals a liberal construction, where that can be done without extending the letter of the statute, which we do not claim the right to do. With this purpose we shall hold that an appeal properly claimed, perfected, and allowed in the probate court ought not to be dismissed for a failure to file the record in the circuit court within the 30 days, provided the same should be filed before the motion to dismiss is actually heard.’-

      That the motion to dismiss the appeal was not made until 10 months after the record had been filed in the circuit court, and not until the cause had been regularly noticed for trial and placed upon the docket for the January term, 1896; that the attention of the attorney for the estate was called verbally to the fact that the record had been filed; that while he, as shown by respondent’s return, on the first day of said term called attention to the fact that the case was improperly on. the calendar, no application to strike it therefrom was made until the motion to dismiss the appeal was made; that no substantial rights on the part of the estate were aflected or lost by the delay in filing the record, nor was the trial of the appeal delayed, as it could not have been brought on for trial before the January, 1896, term of court.
    That it was held in Merriman v. Circuit Judge, 90 Mich. 003, that the circuit-court is not prevented from allowing an appeal to be taken and prosecuted even where no claim to prosecute it has been made; that this holding was made in the light of the fact that it was through the neglect or oversight-of the attorney that the appellant had lost his right to an appeal.
    2. The claim made in the affidavit attached to respondent’s return that the estate has be'en closed, and that it only consisted of “a few hundred dollars, and a few worthless stock certificates,” .when the notice of trial of the appeal was served, cannot affect relator’s right to appeal, the estate not having been caused any delay by any action on her part; that the reason for the delay in making this application was the poverty of the relator; and it is suggested that no time is known within the limits of which it cannot be made.

      John W. Anderson, for respondent, contended:
    1. That the application should be denied because:
    a — Certified copies of the records of the disallowance appealed from, of the application for and bond on appeal, of order allowing the appeal, together with evidence that notice of such appeal had been given to the adverse party according to the order of the probate court, were not procured and filed by relator in the circuit court within 30 days after the allowance by the probate court of-said appeal.
    6 — No application was made by relator to the circuit court within 10 days after the first day of the term next succeeding the expiration of said 30 days to reinstate said appeal because of the inability of relator, by reason of circumstances not under her control, to seasonably perfect said appea-l, and secure personal service upon the administratrix.
    e — No evidence that notice of said appeal had been given to said administratrix as ordered by the probate court was filed within the statutory 30 days, nor has it ever been filed in the circuit court.
    d — That no jurisdictional waiver can be claimed by relator for the reason that the appeal was not noticed for trial at the next term of court after the allowance of the appeal, nor during any succeeding term of court, until the January, 1896, term, and on the first day of said term the motion to dismiss the appeal was made.
    2. That an issue of fact is made between the attorney for relator and the attorney for the estate ■ as to the giving of verbal notice to said last named attorney of the filing of the record in the circuit court.
    3. That from the foregoing facts this case is distinguishable from:

      a — Synder v. Circuit Judge, 80 Mich. 511, where the appeal was noticed for trial at the next term immediately succeeding the expiration of the statutory 30 days; that no motion to dismiss the appeal was made until ten days after the first day of said term; that if it had been made within the ten days, the counsel for the appellant under the proviso clause in How. Stat. § 5911, might have applied for further time in which to perfect the appeal.

      b — Gorton v. Circuit Judge, 97 Mich. 561, where the attorney for the appellee was held to have waived his right to insist on a dismissal of the appeal.
    That this application is ruled by Merriman v. Circuit Judge, 95 Mich. 277.
    4. That relator has been guilty of gross laches in deferring the making of this application until the estate has been closed, the administratrix discharged, the bond cancelled, and the distribution of the real estate made.
   The facts as established by the petition and answer were:

1. That on January 23, 1894, Andrew P. Coulter died intestate, leaving an estate to be administered upon by the probate court of Wayne county.

2. That on,Eebruary 27, 1894, Elizabeth J. Coulter, the widow of the decedent, who was a resident of Dakota, was appointed administratrix of Ms estate; that commissioners on claims were appointed; that relator filed a claim of $1,150.00, or thereabouts, for services claimed to have been rendered the decedent by relator as his house keeper during several years prior to his death; that on November 23, 1894, said commissioners filed their report, in which they disallowed relator’s claim.

[The relator alleged in her petition that, owing to the non-residence of the administratrix, personal service of notice of filing said papers could not be served upon her, and appended to her petition the affidavit of her attorney, in which he reverred that a short time after said papers were filed deponent called the attention of the attorney for the estate verbally 'to such fact, and stated that deponent could, if necessary, file a common count declaration in order that no question might be made regarding the issue in the case, which declaration was afterwards filed. Respondent in his answer averred'a want of personal knowledge as to the facts above set forth, and on information and belief, and as shown by the affidavit' of the attorney for the estate attached to said answer, denied that any notice of the filing of said papers was given by relator or by her attorney. Editor.]

[The respondent denied in his answer that said case was regularly noticed for trial, and averred that it was not so noticed for the April, June, or September, 1895, terms of cqurt, nor until the January, 1896, term; and on information and belief, based upon the affidavit of the attorney for the estate appended to said answer, averred that no notice of trial was served upon the attorney for the estate by the relator or her attorney until the notice of trial for the January, 1896, term of court. Editor.]

3. That on January 11, 1895, relator applied to the probate court of Wayne county for an appeal from the decision of the commissioners, and filed the usual bond; that on the same day an order was entered approving said bond, allowing said appeal, and directing that the appellant give notice to said Elizabeth J. Coulter of the filing of said appeal and of the hearing thereof in the circuit court by personal service upon her of said notice.

4. That on March 19, 1895, relator caused to be filed in the office of the clerk of the circuit court copies of the following papers, namely, the commission issued to said commissioners, their report, the application for appeal, the bond on appeal, and the order of the probate court allowing the appeal, all of which were duly certified by the register of probate, and constituted all of the papers filed by relator in said court.

5. That upon the filing of said papers, and on March 19,1895, said appeal was entered up by the clerk of the circuit court upon the record book customarily used for that purpose, and assigned a docket number in the files and records of the court.

6. That the case was on the docket for the January, 1896, term of court; that on the first day of said term the attorney for the estate orally requested the respondent to strike said cause from the docket, and dismiss said appeal; that the attorney for relator not being in court respondent requested the attorney for the estate to prepare a notice embodying his oral application, and serve a copy thereof on the attorney for relator, which said attorney consented to do, with the understanding that he waived no rights by reason of the motion not being entertained by respondent on the opening day of said term of court; that a praecipe for the entry of a motion to dismiss said appeal for the reason that the record was not filed within the statutory 30 days was entered, and notice thereof duly served upon the attorney for the relator:

7. That no evidence that notice of said appeal had been given by relator to the administratrix of said estate, as directed by the probate court, was procured and filed by relator or her attorney in the circuit court, as provided by 3 How. Stat. § 5911.

8. That no attempt to dismiss said appeal was made until 10 months or thereabouts after said papers were filed, nor until the opening of the January, 1896, term of said circuit court.

[Relator in her petition averred that she had a just claim against the estate; that it was not her fault, or because of any laches on her part, that the record was not seasonable filed; that there was practically no delay in • the determining of her appeal, for the reason that, as she was informed and believed, the same could not have been reached sooner than the term when it was dismissed; that she was poor and without any means of support on her part; that she had relied upon her said claim for her support and maintenance, and could not lose it without great distress to herself. Respondent in his answer avers a want of personal knowledge as to the matters last stated. Editor.]

9. That on March 4, 1896, respondent made an order dismissing said appeal.

10. That, as shown by the affidavit of the attorney for the estate attached to respondent’s answer, the administratrix after the dismissal of said appeal proceeded to dose up her trust; that on April 16,1896, she filed her final account; that such proceedings were thereupon had as resulted in the hearing in open court of said account, its allowance!, and the discharge on May 12, 1896, of said administratrix.


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    The Merchants’ Insurance Company of Newark, New Jersey, v. George S. Hosmer, Circuit Judge of Wayne County.
    Garnishment —Vacating judgment-against garnishee — Filing amended DISCLOSURE, AND INTERPLEADING OTHER CLAIMANTS.
    Relator applied for mandamus to compel the respondent to set aside a judgment rendered against relator as garnishee, allow it to file a supplemental disclosure, and to direct the plaintiff to interplead certain claimants to the fund in relator’s hands. An order to show cause was granted, a hearing had on petition and answer, and on October 21, 1896, the application was denied.

      A. G. Pitts and O. M. Leonard,, for relator, contended:
    1. That relator was not guilty of such laches in failing to file its supplemental disclosure when first notified of the claim of Trowbridge as to make it liable to pay a fine of $700; that the position of a garnishee is sufficiently hard without the adoption of so harsh a rule; that relator’s agent doubtless thought that as the Trowbridge claim was derived from Wood, whose claim had been put in litigation, it did not matter if nothing was said about the Trowbridge claim; that if Wood’s claim was held good, the plaintiff could not recover; that if Wood’s claim was bad so was that of Trowbridge; that if there had been a trial of Wood’s claim it would have appeared why he was indifferent to judgment being entered for the plaintiff; that no trial was had; that plaintiff’s attorney came into court and moved for a judgment founded upon the disclosure; that judgment was entered without any record being made or evidence introduced; that not even the judgment in the principal case was offered in evidence; that such proceeding is not provided for even where the indebtedness is clearly admitted in the disclosure; that there must still be a trial of some sort; citing How. Stat. § § 8070, 8071; that it is only where no demand for trial has been filed by either party that judgment may be entered upon motion as upon declaration and- plea; citing How. Stat. § 8068; Act No. 178, Laws of 1895.
    2. That the laches of the relator did not lead to ,t[ie error committed by respondent; that so far as relator’s motion involved the setting aside of the judgment it was immaterial whether or not relator was in fault; that its laches had nothing to do with the entry of judgment without a trial of the issue relative to the elaim of Wood; that if judgment could be entered against relator upon the disclosure it did file it could just as readily have been done if the disclosure had set forth the Trowbridge claim; that it was in connection with that part of relator’s motion for leave to file a supplemental disclosure that its laches appeared; that if the judgment is set aside, leave to file the supplemental disclosure becomes a matter of course; that relator does not ask to have the judgment set aside on any other ground than that it is totally, invalid; that the reason relator asks said relief is becauso Trow-bridge is making a ciaim to the fund, and relator is afraid it will have to pay. said claim; that the .ground is as above stated; that the court did not seem to distinguish between reason and ground.
    3. That there is nothing in the statute to lead to the conclusion that it is the business of the garnishee to inter-plead claimants; that upon principle that duty devolves upon the plaintiff; citing Kennedy v. McLellan, 76 Mich. 598; Smith v. Holland,. 81 Id. 471.
    4. That the action of respondent in undertaking to inquire into the claim of Trowbridge was of no validity; that it would appear from the questions asked Trowbridge that he claimed through Wood alone; that Wood never having been interpleaded was not concluded by the judgment against relator; that it appeared from the assignment to Wood that all of the insurance had been assigned to him, one half to be paid to creditors and the remainder to be returned to the Decker Manufacturing Company; that respondent declared this assignment void as a fraud on creditors; that as relator is informed the assignment was made to Wood because it was figured by the Decker Manufacturing Company that half of its insurance policies would more than pay its creditors; that afterwards when some companies refused to pay, and the rest had their losses adjusted at less than their face, and certain disputed claims were made good against the Decker Manufacturing Company, and it thus appeared that it would take all of the assets of that company to pay its debts, the assignment from Wood to Trowbridge was made, and the company assigned all of its assets to him to wind up its affairs and pay its debts as far as possible; that Whether or not these facts are true is a question to be tried in such a proceeding as is provided by the statute, and not informally upon' a motion to set aside an invalid judgment; that even if Trowbridge’s claim is invalid, relator has a right to bq dismissed without any further expense, leaving this question to be tried between the Decker Manufacturing Company and the plaintiff and Trowbridge'.
    5.That mandamus is the proper reniedy, the judgment having been rendered on motion, and without a trial; citing How. Stat. § 8068; People v. Bacon, 18 Mich. 2-1-7.

      Bowen, Douglas & Whiting, for respondent, contended:
    1. That the return of the respondent shows that the proceedings which resulted in the judgment complained of were regular; that plaintiff had already obtained judgment against the principal defendant; that relator had disclosed a liability subject only to a. notice from one W. H. Wood that the policy had been assigned to him; that Wood had been garnished at the instance of plaintiff before the garnishment of relator; that whatever interest Wood had had been reached by this writ of garnishment; that this writ had also been served upon Wood before any pretended assignment to Trowbridge and before Trowbridge had acquired any claimed rights in the property; that judgment had been obtained against Wood as garnishee; that inasmuch as relator had not interpleaded Wood the judgment against him unappealed from was conclusive, hence the liability of the relator was not affected by any pretended claim of Wood; that relator admitted its liability subject only to the claim of Wood; that it thereupon became necessary only to introduce in evidence the files and records in the case, and show the judgment against the principal defendant.
    2. That it was the duty of the relator to have interpleaded Wood and Trow-bridge, which it failed to do; that respondent-, however, on the hearing of relator’s motion to set aside the judgment took the testimony of Wood and Trowbridge as to their rights in the fund; that respondent became convinced that any pretended assignment to Wood of this insurance money was void; that Trowbridge had no right to the funds, and refused to set aside the judgment.-
    3. That the proper remedy to set aside the judgment is by writ of error; citing Mauley v. Judge of Superior Court, 32 Micli. 190; O’Brien v. Tattmcm, 36 Id. 15; Olson v. Circuit Judge, 49 Id. 88. ■
   The facts q,s established by the answer were:

1. That on March 27, 1895, relator was garnished in a suit that day commenced in the circuit eourt for Wayne county by Alphonse Posselius and others against the Decker Manufacturing Company; that on April 13, 1895, relator filed its disclosure, in which it denied all liability as such garnishee; that it based its denial upon the following alleged facts:

a — That on November 6,1894, the rela- or issued an insurance policy for $1,000 in favor of the principal defendant; that afterwards said defendant sustained a loss by fire of the insured property; that said loss had been adjusted at the sum of $752.17.

b — That on March 21, 1895, relator received from one W. H. Wood a notice in writing of the assignment to said Wood of said insurance, and that relator was required to pay the same to said Wood.

e — That before being served with said writ of garnishment, relator had been garnished at the suit of Detroit Cash Register Company, Limited, v. The Decker Manufacturing Company, in which suit the plaintiff sought to charge relator for said insurance money under the name of Merchants’ Insurance Company of New Jersey; that said suit was still pending and undetermined.

2. That on April 24, 1895, the plaintiffs filed a demand for a trial of the statutory issue framed in said garnishment proceeding, and served the same upon relator.

3. That relator never took any steps to interplead said Wood in said garnishment proceeding.

4. That on March 27, 1895, upon the affidavit of one of the plaintiffs duly filed, W. 'H. Wood was summoned as garnishee of said Decker Manufacturing Company; that .-said Wood filed a disclosure denying all liability as such garn-' ishee; that such proceedings were thereafter had as resulted in the examination of said Wood as such garnishee, the filing of the report of the circuit court commissioner before whom said examination was had, the trial of the statutory issue thus framed, the filing on said trial of a stipulation by said Wood, in which he waived any claim that he might have to the insurance moneys in the hands of the several insurance companies garnished in the principal cause, and consented that judg-ment might be entered accordingly, but without costs; that said Wood should not be personally liable on said judgment, the purpose of the stipulation being to vest in the plaintiff, subject to the rights of other garnishments in their order, the right to the moneys reached by the writs of garnishment due from the several insurance companies against which writs might have issued in said principal cause, free from any claim of said Wood by reason of his disclosure or otherwise; which judgment was entered accordingly.

5. That on February 28, 1896, plaintiffs obtained a judgment against the Decker Manufacturing Company for $2,198.27.

6. That in June, 1896, the statutory issue framed in the proceeding against relator came on for trial before Edward D. Kinne, circuit judge of Washtenaw county, who was-then sitting as an additional circuit judge In the Wayne circuit court; that, as shown by the statement made by Judge Kinne, and made a part of the respondent’s return, relator wás represented by its attorney, and the plaintiffs by its attorney, who also represented the Detroit Cash Register Company; that it was just after the noon hour, but before adjournment; that the stenographer had left; that after hearing counsel Judge Kinne decided to proceed with the case; that each of the counsel made a full statement of what he claimed; that counsel for plaintiffs offered in evidence the files and records in the original ease, showing the rendition of judgment against the principal defendant; that it further appeared that the plaintiffs had obtained judgment by- stipulation against said Wood; that it appearing to the said Kinne that relator was indebted to the principal defendant, that judgment had passed against said Wood, who had claimed an assignment of the insurance policy of relator, thus cutting off his claim, judgment was rendered in favor of the plaintiffs, and against relator for the amount then due from it to the principal defendant as shown by its disclosure.

7. That on June 18,1890, relator, moved to set aside said judgment, for- leave to file a supplemental disclosure, and to interplead said Wood and one Frank C. Trowbridge, who, as claimed by relator, had on or about June i; 1895, notified relator by mail that the entire interest of said-Wood and the principal defendant in the insurance moneys due on the policy issued by relator, had been by said Wood assigned to said Trowbridge; that the principal defendant had consented to his substitution in the trust, and that said Trowbridge was the owner of said insurance moneys in trust for the said principal defendant, and as such entitled to any and all payments to be made thereon; that on the hearing of said motion it appeared from the statement of counsel that the only question raised by relator’s counsel was whether or not it would be liable to be sued again by, said Trowbridge; that in order to have said question determined respondent adjourned the hearing of said motion and ordered said Trowbridge and Wood to appear in eourt on the following day, and show what right or claim they had to the fund garnished in the hands of the relator; that‘on the following day said Trow-bridge and Wood appeared in court; that there were also present relator’s attor- . neys, the attorney for the 'Detroit Cash Register Company, and the attorney for plaintiffs; that the attorney for the .Detroit Cash Register Company stated that it claimed no lien upon said fund; that thereupon said Trowbridge and Wood were sworn and examined by counsel on both sides as to the interest of’said Trowbridge in said fund; that it .appeared by the testimony of said Wood that relator's insurance policy and cer-. tain other insurance policies had been assigned to him by the Decker Manufacturing Company; that respondent decided and held said assignment void under How. Stat. § 6184, inasmuch as it reserved to the Decker Manufacturing Company fifty per cent, of the insurance moneys to be collected by said Wood from the policies so assigned; that it also appeared from the testimony of said Trowbridge that whatever claim he had, through assignments from said Wood or the Decker Manufacturing Company, were subsequent to the service upon relator of said writ of garnishment; that as held by respondent, inasmuch as it appeared that judgment'had been taken against said Wood by stipulation, his rights were cut off thereby, and respondent refused to set aside the judgment against relator.


text:
    John B. Matthew et al. v. Mathilda Forslund.
    Writ of error — Dismissal of for want of prosecution.
    Motion by plaintiffs ■ and appellees to dismiss writ of error for want of prosecution. Granted November 12, 1896.

      Jolm D. Barry (Julius J. Patek, of counsel), for motion.

      Buck <& Waples, contra.

   The facts as shown by the record, and as alleged in the affidavits filed in support of and in opposition to the motion, were:

1. That on August 10,1895, the plaintiffs recovered judgment in justice’s court against the defendant for $101.73, and costs of suit.

2. That said judgment was removed by certiorari to the circuit eourt of Gogebie county, the error assigned being want of jurisdiction in the justice to proceed with the trial of the ease because the provisions of the statute were not followed, in that service of the writ of at tachment upon the garnishee defendant was made upon a day when valid service could have been made upon the principal defendant, whereas the statute requires that the entire time during which valid service can be made upon the -principal defendant, if found within the county, shall have elapsed before service can be made upon the garnishee defendant so as to be the basis for a valid judgment against the principal defendant. - •

3. That it appeared from there turn of the justice of the peace to the certiorari:

a — That on-July 3, 1895, affidavits in attachment and in garnishment were filed with.the justice; that a writ of attachment against the property of the defendant and a summons in garnishment against the Gogebic Hardwood Manufacturing Company were issued and made returnable fuly 9, 1895, at nine o’clock a. m.; that the garnishee summons was returned personally served upon the general manager of the garnishee defendant; that the constable returned that on July 3, 1895, he seized in the hands of the garnishee defendant $101.73 in money of the goods and chattels'of the principal defendant, and because said defendant could not be found in the county of Gogebic he left a certified copy of said writ of attachment with the garnishee defendant, in whose possession he found said money.

1) — That on July 9, said return showing that the defendant could not be found, said cause was adjourned to August 10, 1895, at 9 a. m. at same place.

c — That on August 10, plaintiffs appeared by their attorney, and declared orally on the common courts in assump sit, to their damage $300; that, after waiting one horn- and defendant not appearing, judgment was rendered in favor of the plaintiffs and against the defendant for $100.73, and $4.75 costs.

4. That on March 7, 1896, a writ of error was sued out by said principal defendant, returnable April 6, 1896, on which da"y said writ was returned with a transcript of the record in said case.

5. That on November 4, 1896, the plaintiffs and appellees moved to dismiss said writ of error for want of prosecution.

6. That it appears from the affidavit of Julius J, Patek, of counsel for plaintiffs, filed in support of said motion, that on íúne 25,1896, notice of the argument of said appeal at the October, 1896, term of court was duly served upon the attorneys for'the appellant; that on the day fixed for said hearing the case was stricken froni the docket because of the failure'of'the appellant to file and serve the printed record, as required by the rules of court; that the appellant, up to the time of the entry of said motion, had failed to file such printed record.

7. That an affidavit in opposition to •said motion made by Belmont Waples, one of the attorneys for. the appellant, was filed, in which it was averred:

That there was then pending in the Supreme Court a chancery suit involving substantially the same cause of action. as that .involved in said attachment suit; that the solicitors in said chancery' suit had stipulated that the same should be brought on for hearing at said October, 1896, term of Court with the consent of the Court; that deponent had mentioned said fact to John D. Barry, attorney for the plaintiffs and appellees, and solicitor for the same parties in said chancery suit; that he had replied that he had no objection to such course being' pursued; that in reliance upon such arrangement the record and brief in said attachment suit had not been printed; that neither of the attorneys for the appellant had been requested by the attorney for the appellees or by their counsel to prepare and print said record and brief, nor had they or either of them been advised that the appellees desired to have the ease disposed of before the said chancery suit;' that the hearing of the case had not been postponed for the purpose of vexatious delay, but that such hearing might follow the hearing and disposition of said chancy suit.

8. That the affidavit of John D. Barry, the attorney for the appellees, in answer to the affidavit last recited, was. filed, in which it was averred:

a — That each and every allegation made by said Waples and contained in his affidavit relative to said attachment case was untrue.

ft — That there was not then nor ever had been pending in the Supreme'Court a suit in chancery between the appellant and appellees involving the same or substantially the same cause of aetion as was involved" in said attachment case; that deponent had never stipulated to defer the argument of saidj attachment case to, some other term of court than that for which it had been noticed as aforesaid; that deponent had stated to said Waples on different occasions- that Julius J. Patek, counsel for appellees, had exclusive charge of said case.

c — That the purpose of serving notice of hearing as early as June 25,189(5, was to bring said ease on'for hearing at said October, 1896, term of Court, of which, fact said Waples had full knowledge.