Zook v. Blough

Marston, G. J.

Blough sued out a writ of attachment before a justice of the peace against Zook, and property was seized by virtue thereof. An application was made before a circuit court commissioner for a dissolution of the attachment, and upon the hearing it was dissolved. The proceedings were then removed to the circuit court by certiorari, and on hearing quashed.

A circuit court commissioner had power to allow the writ (2 Comp. L., § 7133) and the circuit court had jurisdiction to issue and hear the same. Merrick v. Township Board, 41 Mich., 630 .

The principal question, and the only one remaining to be considered which is deemed of any importance, relates "to the sufficiency of the petition praying for a dissolution of the attachment.

The objection urged 'against it was that it did not contain any allegation that the petitioner was entitled to the possession of the property. The petition set forth that the officer did “seize and take into his possession, of the goods and chattels of this deponent,” * * *- certain described property, and that he levied on ten acres of corn and seven and one-half acres of oats, all of which corn and oats.“are and then were growing on the farm of deponent,” which was described, all of which goods and chattels “.were and now an'e, and ever since have been, the goods, property and chattels of this deponent.”

As was said in Johnson v. DeWitt, 36 Mich., 96 , the fair inference is that the owner of personal property is entitled to its possession, and yet he may not be, and that therefore on principle the application should allege a right to the possession of the attached property. Where however an allegation of ownership is distinctly made, and there is nothing in the case indicating- that any other person has acquired any right in opposition thereto, the legal presumption that the owner of property is entitled to the possession of the same may very fairly be indulged, for the purpose of giving the commissioner jurisdiction. If upon the hearing it appears that the *489 applicant is the owner, yet that third parties have rights therein and are entitled to the possession, the petitioner must fail.

In Macumber v. Beam, 22 Mich., 895 , the statement of ownership in the application was not so clear and distinct as in this case, yet it was held sufficient. Although an intimation was made in Johnson v. DeWitt as to what should be alleged in the petition, yet that case was not disposed of on such grounds, but what appeared from the evidence on the hearing. It must appear from the petition that the party is thus entitled to the possession and restoration of the property levied upon; but this, for the purpose of giving the commissioner jurisdiction to issue a citation, may sufficiently appear from clear and distinct allegations of present ownership.

The judgment of the circuit court quashing the proceedings of the commissioner must be reversed with costs.

The other Justices concurred.