Conway v. Ionia Circuit Judge

Campbell, J.

A ma/ndamus is asked to rescind an order -dismissing garnishee proceedings as founded on a defective affidavit. The affidavit does not conform to the amended garnishee law of 1879 inasmuch as it fails to show the nature of the contract of the principal defendants, or to identify it with the cause of action in suit. As we have repeatedly held the defects fatal we need not discuss it.

But it is claimed the garnishee waived the jurisdictional defect by appearing and disclosing. He expressly denied having any property of the principal debtors, and his disclosure showed claims of creditors under an assignment, in- *29 which he had no personal interest, and in which other persons had. The motion to quash was entered before any judgment had been rendered against the principal defendants..

Without considering under what circumstances, if at all,, a waiver will preclude the garnishee from raising such objections, we do not think: it was any abuse of discretion in the circuit court to reheve the garnishee from further responsibility. There seems to have been no difficulty in the-way of making a valid affidavit when the motion was noticed,, and whatever may have been the case on this point, the garnishee should not be deprived of his jurisdictional defence, and be made to bear the annoyance of a litigation in which he has no interest, unless his conduct has been such as to work serious prejudice. In the present case if the principal defendants had not withdrawn their defence the judgment: against them must have been still further delayed, and, as-already stated, the garnishee had made no admissions whatever of liability. He could only have been held upon the-trial of an issue, which was not ripe for trial before judgment, in the principal case.

The mandamus must be denied with costs.

The other Justices concurred.