that the constable shall execute the writ at least six days before the return thereof, by seizing goods and chattels sufficient to satisfy the demand and costs, making an inventory thereof, and serving a copy of the attachment and inventory upon the defendant, if he can be found within the county; that, if he cannot be found within the county, the constable shall leave a copy of the attachment and inventory at the last place of residence of the defendant. 2 How. Stat. §§ 6840, 6841. Under the statute, whether the service be personal or substituted, it must be made at least six days before the return day thereof.

It was claimed, however, that the justice's docket showed that the defendant had appeared in the attachment proceeding. The docket entry was as follows:

"May 28, 1892, at 10 o'clock in the forenoon, suit called. Parties present, and answer to suit by their attorneys,Henry C. Van Atta for the plaintiff, Chandler & Teegal for the defendant; and by mutual consent of parties the above suit was adjourned, without pleadings or prejudice to either party, until the 15th day of June, 1892, at 10 o'clock a. m.

"June 15, 1892, at 10 o'clock in the forenoon, suit called. Plaintiff appears, and answers to suit. Defendant appears, not in answer to suit, but for the purpose of filing an objection in writing, and on file with the court. Plaintiff declares," etc.

It cannot be said that this was such an appearance on May 28th as waived the defect in the service of process. The evident purpose of the language, "without prejudice," was to save the right to raise the question as to the defect in the service.

George B. Tunningly was a farmer, and was at that time absent from home, preparing to homestead a piece of land. The colt and another were kept with reference to their use for farming purposes. Plaintiff claimed that this colt was her individual property. The trial court instructed the jury as to what property was exempt under the statute; that after levy it was the duty of the officer

to give an opportunity to claim the statutory exemption; that this had not been done; that if they found that the property seized was the property of the husband, but was exempt, they should find for plaintiff; that in such case the statute (2 How. Stat. § 6297) gave the wife the right to maintain the action; that if the colt was in her possession, or if it was her property, she was entitled to

recover.

There was no error in these instructions, and the judgment is affirmed.

The other Justices concurred.

LICHTENBERG v. WAYNE CIRCUIT JUDGE.

- JUSTICES'

COURTS APPEAL BY GARNISHEE

GARNISHMENT CERTIORARI. After a garnishee in justice's court has appealed from a judgment against him, certiorari will not lie at the suit of the principal defendant to review the garnishment proceedings.

Mandamus by William F. Lichtenberg and others against George S. Hosmer, circuit judge of Wayne county, to compel the entry of judgment on certiorari from justice's court. Submitted June 4, 1895. Denied July 2, 1895.

Bowen, Douglas & Whiting, for relators.

MONTGOMERY, J. On the 25th of September, 1894, one Ernst Shrikel commenced proceedings in garnishment before Harry L. Schellenberg, a justice of the peace in Wayne county, against the First National Bank of Detroit, as garnishee defendant; the proceedings being based upon a judgment in favor of Shrikel, and against

the relators. In the garnishee proceedings a judgment was rendered against the bank of $110.65 and costs, on the 26th day of October, 1894. On the 31st day of October the case was removed, by a general and special appeal, to the circuit court, by the bank. On the 5th day of December, 1894, a writ of certiorari was issued from the circuit court, at the instance of the relators, the principal defendants, to bring up the garnishee proceedings for review. The two cases came on for argument at the same time, and the respondent reversed the judgment and dismissed the proceedings against the garnishee, upon the special errors alleged in the affidavit for special appeal by the bank, and thereupon declined to render any further judgment in favor of these relators in the certiorari proceedings. Mandamus is now asked to require the circuit judge to proceed to enter a judgment in the certiorari proceedings. The respondent offered to enter a judgment quashing the garnishee proceedings, but refused to enter any judgment in favor of the plaintiffs in certiorari.

It will be seen that the question presented is whether, after an appeal by the garnishee from the judgment against him in justice's court, the principal defendant may then remove the case by certiorari, and thus subject the plaintiff in the proceeding to double costs, in a case where the principal defendant is fully protected by the appeal. We have not much hesitation in saying that such ought not to be the law. It is true that the court held in Lake Shore & M. S. R. Co. v. Hunt, 39 Mich. 469, that certiorari was a proper remedy to get rid of a void judgment, but this was certiorari sued out at the instance of the garnishee defendant. It was also held in Wilson v. Bartholomew, 45 Mich. 41, that the common-law writ of certiorari may be sued out by the defendant in the principal suit to review garnishment proceedings before a justice. But in neither of these cases had the proceeding been removed to the circuit court by one having

the right to appeal, as the garnishee defendant undoubtedly had.

Relators contend that the rights of the garnishee defendant and the principal defendant may be different; that the garnishee may waive formalities which would be, but for such waiver, essential, but it is urged that such a waiver cannot bind the principal defendant. It would certainly be an anomaly to hold that any step in the proceedings may be dispensed with, and that a judgment valid against the garnishee, and one which he cannot disturb, may be rendered, and yet that the same judg ment may be vacated at the instance of the principal defendant. Such, we think, is not the remedy open to the principal defendant. The judgment is either good or bad. The waiver is either effectual to make the judgment binding, or it is nugatory. There may be cases in which the garnishee cannot set up the judgment as a defense to the demand of the principal defendant, even though a valid judgment has passed against him. If so, it is not of any concern to the principal defendant that the garnishee defendant has by his own act made possible a valid judgment against himself. Hebel v. Insurance Co., 33 Mich. 400; Johnson v. Dexter, 38 Mich. 695. If it be true, then, that the garnishee may waive irregularities in such manner as to bind him, such waiver binds him finally; and, if it be not binding upon the principal defendant, his remedy is in a suit against his debtor, the garnishee. We do not think it can be said that the principal defendant can raise any question relating to the validity of the proceedings against the garnishee which the garnishee himself could not raise by the same method.

When the writ of certiorari was sued out, there was no judgment affecting the rights of the plaintiffs in certiorari in justice's court, nor has any since been entered in the circuit, and we think one reversal of the justice's judgment sufficient to answer the requirements of all

parties concerned in the litigation. McCormick Machine

Co. v. Reed, 85 Wis. 201.

The writ will be denied.

The other Justices concurred.

OSOWICKI v. FERRICK.

JUSTICES' COURTS-NON-RESIDENT PLAINTIFF-LABOR CLAIM — SECURITY FOR COSTS.

3 How. Stat. § 7717e, which provides that, in any suit to recover for the personal labor of the plaintiff, security for costs "shall not be ordered" if the plaintiff shall make and file an affidavit that he has a meritorious cause of action and is unable to give such security, does not apply to a plaintiff in justice's court who is a non-resident of the county, and as such is required by 2 How. Stat. § 6824, to give security for costs before the issuance of process.

Error to Gogebic; Haire, J. Submitted June 4, 1895. Decided July 2, 1895.

Assumpsit by Fabian Osowicki against August Ferrick for labor performed. From a judgment for defendant, plaintiff brings error. Affirmed.

Julius J. Patek, for appellant.
John D. Barry, for appellee.

MONTGOMERY, J. This is an appeal from a judgment of the circuit court of the county of Gogebic affirming a judgment of a justice of the peace dismissing plaintiff's action for his failure to give security for costs. The sole question presented is whether section 7717e, 3 How. Stat., should be so construed as to excuse a non-resident plain