Gibbs v. Montcalm Circuit Judge

Assignments for Benefit of Creditors — Right of Assignee to Sue — Objections of Debtor. The maker of a note assigned, with other assets of the payee, for the benefit of the latter’s creditors,, cannot raise the question that the assignee, in view of 3 Comp. Laws 1897, § 9541, providing that “ assigned property and assets * * * shall be sold at public auction or at private sale, as the court * * * may direct,” has no authority to sue on the note; the creditors, for whose benefit the statute is designed, alone being competent to raise such objection.

Mandamus by Lucius H. Gibbs to compel Frank D. M. Davis, circuit judge of Montcalm county, to vacate an order dismissing an action at law. The relator is the assignee of William Gr. Wisner, who made to him a common-law assignment for the benefit of creditors. Among the assets was a note for $100, made by P. M. Lathrop, and payment guaranteed by Mr. Van Ness, the defendant. Relator brought suit upon this note in justice’s court, and recovered a judgment. Van Ness appealed to the circuit court. The plea was the general issue. An amendment to the declaration was allowed. After two .continuances, the case was tried, and the jury disagreed. The case came on again for trial. A jury was impaneled, sworn, and the taking of testimony commenced, whereupon the defendant raised the question that relator had no right to prosecute this suit under 3 Comp. Laws 1897, § 9541. The court sustained the objection, and refused to proceed with the case. The object of this petition is to obtain the writ of mandamus to compel the-circuit judge to proceed with the trial.