DocketNumber: Calendar No. 27,173
Citation Numbers: 192 Mich. 508
Judges: Bird, Brooke, Kuhn, Moore, Ostrander, Person, Steere, Stone
Filed Date: 7/21/1916
Status: Precedential
Modified Date: 9/8/2022
A writ of mandamus is asked to compel respondent to set aside a writ of capias ad respondendum on which relator was arrested, because of the insufficiency of the affidavit upon which it was issued. The affidavit was made by William R. Clendenin of Cass county, and filed in the circuit court for that county.
Objection is made to the affidavit because the affiant had no personal knowledge of the facts sworn to; that, while the affidavit appears to contain positive statements of fact, “when carefully examined with reference to its objects and purpose, it is so in form only.”.
But it is argued that no conversion is shown; that if the horse were dead, or it was impossible to redeliver it, relator would not be guilty of conversion. This might or might not be true. Relator might be able to show a state of facts, which would be convincing, that he had not converted the horse, but this showing, whatever it might be, would be by way of defense. While a demand for and a refusal to deliver are not ipso facto a conversion (Felcher v. McMillan, 103 Mich. 494 [61 N. W. 791]), they are evidence of a conversion, and usually make a prima facie case. 38 Cyc. p. 2031. If a prima facie case of trover is made out by the affidavit, a writ of capias ad respondendum will lie. 3 Comp. Laws, § 9998 (3 Comp. Laws 1915, § 12415).
2. The jurisdiction of the proceedings is questioned on the ground that the judge was not present in the county of Cass when he fixed and indorsed the bail on the writ, but was in Van Burén county, which county is also a part of his judicial circuit. 3 Comp. Laws, § 9998 (3 Comp. Laws 1915, § 12415), authorizes the "judge of the court from which the writ issues” to fix
3. A further objection is made that the affidavit for the writ was sworn to before the wife of the attorney for plaintiff. The objection in short is that the statute prohibits attorneys from acting as. notaries in causes in which they are professionally engaged (1 Comp. Laws, § 2640 [3 Comp. Laws 1915, § 12082]), and that, by analogy the wives should be prohibited from so doing by reason of the confidential relation existing between them. We do not think there is any merit in this point. The statute has conferred the authority on her to act as notary public, and unless that right is restricted, as in case of attorneys acting as such in their own cases, we see no legal reason why she may not act in such cases, even though she be the wife of one of the attorneys interested in the case. The question is an appropriate one for the consideration of the legislature.
We think the objections to the writ are not well taken. The writ will be denied, with costs to the respondent.