Northern Michigan Lumber Co. v. Lyon

Grant, J.

Certain parties commenced suits by attachment to enforce liens for labor and' services upon certain logs belonging to the plaintiff in this suit, under Act No. 229, Laws of 1887. The affidavits for the attachment were made April 25, were filed April 27, and the writs issued. Due service was had upon the principal defendants, and copies of the writs were served upon the plaintiff. Judgments were entered in favor of the plaintiffs in the attachment suits, executions issued, and the logs here involved were sold by virtue thereof, and bid in by the defendant. The plaintiff appeared by attorney at these sales, and forbade the same for certain reasons then given.

The justice acquired no jurisdiction in the attachment suits, because the affidavits were not filed and the writs issued on the same day. McPherson v. McGillis, 93 Mich. 525 .

It is, however, insisted on behalf of .the defendant that plaintiff is now estopped to interpose this objection, because its attorney did not include it in his protest' at the time of the sale. It is unnecessary to decide whether this defense is available under the plea of the general issue. The court found that the defendant bid at the sale relying on the advice of his attorney, whom he had employed to examine the records of the suit, and who reported to him thereon. The evidence sustained the finding. Both parties, therefore, were equally cognizant of the facts, and neither the declaration nor silence of plaintiff produced any effect *586 upon tbe conduct of tbe defendant. There can be no estoppel where one is not deceived or misled, but acts upon bis own. judgment, and with knowledge of tbe facts. Story, Eq. Jur. § 1544; Fletcher v. Circuit Judge, 81 Mich. 193 , and authorities there cited.

Judgment affirmed.

The other Justices concurred.