An Act to Amend Chapter One Hundred and Fourteen of the Revised Statutes, entitled, "Of Court Commis be sioner for dissolu tion of attach by ment. 3 Mich. Rep., 18. (4773.) SECTION 1. The People of the State of Michigan enact Defendant may apply to Circuit That in all cases where a writ of attachment has been or shall Judge or Circuit be issued and served under the provisions of law, it shall lawful for any defendant whose property may be attached virtue of such writ, to apply to the Judge of the Circuit Court, or to the Circuit Court Commissioner of the County where such writ issued, for a dissolution of such attachment; which application shall be in writing, and shall contain the reasons for such application. tiff; when to is sue. (4774.) SEC. 2. Upon the presentation of such application, Citation to plainthe Judge or said Commissioner shall issue a citation to the plaintiff in attachment, requiring him to show cause on a day and at a time and place in said citation to be named, before the said Judge or Commissioner, why the said attachment should not be dissolved, and the property be restored to the defendant in attachment. (4775.) SEC. 3. The citation shall be served three days at How served. least before the return day thereof, by reading it to the plaintiff in attachment (or to either of them, if there be more than one), if found within the county, and if not, then the same may be served upon the agent or attorney of the plaintiff, by the Sheriff, either of his deputies, or any constable or other person authorized by such Judge or Commissioner, and on the return day thereof, or at such other day thereafter as the Judge or Commissioner shall appoint for that p rpose, he shall proceed to hear the proofs and allegations of the parties; Hearing. and if said Judge or Commissioner shall be satisfied that such plaintiff has not a good and legal cause for suing out such writ, the said Judge or Commissioner may order such attachment to be dissolved, and the property attached to be restored Attached may be to the defendant; and may, at his discretion, require the said When property defendant to enter his appearance to the plaintiff's action prior restored. to the dissolution of such attachment. Witnesses. (4776.) SEC. 4. The Judge or Commissioner shall have Attendance of full power to issue subpoenas and if necessary, attachments) to compel the attendance of witnesses to testify in such cases, and may order the costs of such proceedings, by citation, to Costa be paid by the party against whom the decision of the Judge shall be in the premises, and may issue execution therefor, returnable in sixty days from its date. CHAPTER CXLI. OF PROCEEDINGS AGAINST GARNISHEES. SECTION 4777. In what cases Garnishee process may is- 4778. Liability of Garnishee. 4779. When Warrant may issue against Gar- 4780. Form of Warrant and service thereof. 4782. Proceedings on examination. 4784. Summons in such cases to show cause. 4786. Declaration against Garnishee; Trial. 4788. Execution on judgment. 4790. When costs against Garnishee may be SECTION 4792. Return of Execution. 4793. Levy and sale of property delivered up by Garnishee on Execution; Proceedings thereafter. 4794. Bank notes to be treated as cash at option of Plaintiff. 4795. Effect of judgment against Garnishee. 4797. Exception to Bar. 4799. Proceedings when money is to become 4801. Proceedings in County Courts. cases In what 2 Mich. Rep., 555. 7 Mass., 259. & Mass., 271. 4 Ind., 636. An Act to Authorize Proceedings against Garnishees, and for other Purposes. [Approved March 28, 1849. Took Effect May 27, 1849. Laws of 1849, p. 153.] (4777.) SECTION 1. Be it enacted by the Senate and House of cess may issue. Representatives of the State of Michigan, That in any action commenced before a Justice of the Peace, founded upon contract, express or implied, or upon judgment or decree, or after the rendition of judgment in any case, if the plaintiff, his agent or attorney shall make and file with such Justice an affidavit, stating that he has good reason to believe, and does believe that any person (naming him) has property, money or effects in his hands or under his control, belonging to the defendant in such suit, judgment or decree, or that such 6 Blackf., 398. 12 Mass., 441. person is indebted to such defendant, the Justice shall issue a summons against such person requiring him to appear before such Justice at a time and place mentioned in said summons, not less than six, nor more than twelve days from the date thereof, and answer under oath, all questions put to him touching his indebtedness to such defendant, and the property, money and effects of the defendant in his possession, within his knowledge, or under his control; which summons shall be served and returned in the same manner as a summons issued Service of such against a defendant in other cases. The garnishee shall be entitled to the same fees as he would be, if he were subpoenaed as a witness in such cause. process. nishee. (4778.) SEC. 2. The person summoned as garnishee, from Liability of Garthe time of the service of such summons, shall be deemed 15 . Rep., 89. liable to the plaintiff in such suit, to the amount of the property, money and effects in his hands or possession, or under his control, or due from him, to the defendant in such suit: Provided, That when the defendant is a householder having a family, nothing herein contained shall be applicable to any indebtedness of such garnishee to the defendant for the personal labor of such defendant, or his family, for any amount not exceeding the sum of twenty-five dollars. may issue against (4779.) SEC. 3. If such garnishee neglect or refuse to appear when Warrant at the time and place mentioned in such summons, and answer Garnishee. as aforesaid, the Justice shall continue the cause to some other day; and without further showing than the officer's return, that the summons had been personally served upon the garnishee and his fees paid or tendered, issue a warrant to bring such garnishee before him. and service (4780.) SEC. 4. Such warrant shall command the officer Form of Warrant forthwith to take the body of such garnishee, and bring him thereof. before such Justice, and shall contain a further command that such officer, after he shall have arrested the garnishee, notify the plaintiff of such arrest; and such warrant shall be served and returned in the same manner as warrants issued in other cases. mons the com. (4781.) SEC. 5. The personal service of a summons upon Service of Sumsuch garnishee shall be deemed the commencement of suit in mencement of the name of the plaintiff against such garnishee, which may be entered on the docket as suits in other cases. suit. examination. (4782.) SEC. 6. On the appearance of such garnishee before Proceedings on such Justice, or on some other day to which the same may be 21 Pick., 21. adjourned, the plaintiff may proceed to examine the garnishee Continuance of proceedings. Summons in such cases, to show cause. How Summons served Declaration against Gar-nishee. on oath or otherwise, as the plaintiff may elect, touching the matters alleged in the affidavit, and the Justice shall take minutes of such examination, and file the same with the other papers in the cause. (4783.) SEC. 7. Upon closing the examination, if a suit be pending and undetermined between the plaintiff and defendant, the cause shall be continued, but it shall not be necessary to adjourn the same to any day certain. (4784.) SEC. 8. After the final determination of the suit against the defendant in the case mentioned in the preceding section, the Justice shall, at the request of the plaintiff, his agent or attorney, issue a summons against the garnishee, commanding him to appear before the Justice, to show cause why a judgment should not be rendered against him. (4785.) SEC. 9. Such summons shall be made returnable not less than three nor more than ten days from the date thereof, and shall be served at least two days before the time of appearance mentioned therein. (4786.) SEC. 10. In all cases where a judgment has been rendered against the defendant, and also after a final determination of the suit pending against the defendant, as mentioned in section seven of this act, and the garnishee has been duly summoned to appear and show cause, the plaintiff may declare against the garnishee for the property, moneys and effects above mentioned, in trover; or if the garnishee be indebted to the defendant, for moneys had and received, or if the garnishee shall have property, moneys and effects of the defendant in his possession, and shall also be indebted to the defendant, the plaintiff may declare in trover, and add thereto 3 Mich. Rep., 309. a count for moneys had and received, and may give the special 5 Metcalf, 263. matter in evidence; and the garnishee may plead thereto, and issue may be formed and tried as if the defendant had brought such suit against the garnishee for the matters set forth in such declaration, and either party shall be entitled to an appeal or other process as in other cases. Trial 9 Pick R., 144. 19 Pick., 20. 13 Ill. Rep., 697. 12 do 567. What de emed discontinuance nishee. (4787.) SEC. 11. If the plaintiff fail to recover judgment against Gar-against the defendant in the cases mentioned in section seven of this act, or if the defendant pay the judgment rendered in such case, or stay the execution thereon within the time, and in the manner prescribed by law, it shall in either case be deemed a discontinuance of all proceedings against the garnishee. (4788.) SEC. 12. If judgment be rendered against the Execution on garnishee, the Justice may issue execution thereon as in other cases. judgment. (4789.) SEC. 13. Judgments against garnishees may be Judgments may stayed in the same manner and with the like effect as in other cases. be stayed. against Garni out of the effects (4790.) SEC. 14. If the garnishee shall, on demand, deliver when Costa to the officer having such execution, all the property, money shee may be paid and effects in his possession or under his control, belonging to in his hands. the defendant, and pay all moneys found to be due from him. to the defendant at the time the suit was commenced against him, or so much of the money, property or effects as may be necessary to satisfy such execution, then the costs which may have accrued against such garnishee shall be paid out of the property, moneys and effects so paid over or delivered to such officer. a8 to endorse tion. (4791.) SEC. 15. The officer having such execution shall Duties of officer endorse all moneys received from such garnishee, and a ment of execu description of all property or effects delivered to him by the garnishee; and such delivery or payment shall be deemed a delivery or payment to the defendant in such suit. cution. (4792.) SEC. 16. Upon the return of such execution So Return of exeendorsed, the same shall be entered on the docket of the Justice as fully as such return appears upon such execution, and such entry or a transcript thereof shall be prima facie evidence of the facts therein stated. property deliver nishee on Execu (4793.) SEC. 17. Whenever the garnishee shall pay or Levy and sale of deliver to the officer having such execution any property ed up by Garwhich may be sold on an execution by existing laws, the officer tion; proceedshall proceed to levy upon and sell the same at public auction ings thereafter. or vendue as in other cases, and if the garnishee shall deliver to such officer any notes, bills, bonds or other choses in action, the officer shall return the same to the Justice, to be retained in his hands for the use of the plaintiff, and the plaintiff may sue or collect the same, or so much thereof as may be necessary to pay the judgment against the defendant, and the costs. The balance, if any, shall be returned to the garnishee or the defendant. All bills, bonds, notes, accounts and other choses in action received or delivered under the provisions of this section, shall be taken subject to all liens, set-offs, rights, liabilities and equities existing between the original parties thereto. |