Vanderhoof v. Prendergast ( 1892 )

Montgomery, J.

Plaintiff brought replevin for 90,000 feet of saw-logs. Defendant justified under a writ of attachment issued against the goods and chattels of one E. M. Vanderhoof, brother of plaintiff, and offered evidence to show that the property originally belonged to the defendant in attachment, and was transferred to the plaintiff in fraud of creditors. The defendant offered in evidence the writ of attachment, affidavit, and proceedings before a justice of the peace. It subsequently appeared that the attachment case proceeded to judgment before the justice, but that the judgment so obtained was reversed on certiorari after the commencement of the present suit. The plaintiff offered various objections to the sufficiency of these proceedings, which were overruled by the circuit judge, and judgment was entered for the defendant for costs, but the judge' found the plaintiff to be the general owner of the property, and therefore gave no judgment for its return.

It appeared by testimony that after the case had been removed from justice's1 court to the circuit court by certiorari the defendant was notified of that fact, and that a certiorari bond had been given for the payment of the' debt, and that he still refused to deliver the property to the plaintiff. ~We think the effect of suing out the certiorari and giving the statutory bond for the payment of any judgment that might be rendered in the circuit court was to dissolve the attachment.

It was held in Bushey v. Raths, 45 Mich. 185, 186, that an appeal by a defendant released property from the lien of the attachment. As the condition of the certiorari bond is substantially the same, we see no reason for distinguishing between the two cases. The case of Treat v. Dunham, 74 Mich. 114, is not opposed to Bushey v. Raths. In that case the judgment was against the plaintiff, and of course the appeal-bond gave him no security for the payment of his debt.

The circuit judge was also in error in directing a verdict for the defendant for another reason. There was evidence tending to show a purchase of this property in good faith by the plaintiff before the levy of the attachment, which ran not against the plaintiff, but against a third person. TJnder these circumstances, even though the writ may have been valid and still in force when the demand was made, the defendant could only justify his holding on the ground that the transfer from R. M. Yanderhoof to the plaintiff was fraudulent as to creditors. This presented a question for the jury, which should have been submitted to them under proper instructions.

It becomes unnecessary to. examine the other errors; assigned.

The judgment will be reversed, with costs, and a new trial ordered.

The other Justices concurred.