People ex rel. McCallum v. Gebhardt

Ostrander, J.

(after stating the facts). The writ of capias ad respondendum was not prematurely issued. The date of a writ is undoubtedly prima facie evidence of the time it was actually issued (Howell v. Shepard, 48 Mich. 472 ), but a suit is not commenced by writ until the writ is delivered or transmitted to an officer with the bona fide intention of having it served (Dedenbach v. City of Detroit, 146 Mich. 710 ). The statute (3 Comp. Laws, § 9998) permits personal actions to be commenced by capias ad respondendum in certain cases “where an order for bail shall be indorsed on the writ by a judge of the court from, which the writ issues, * * * directing the amount in which bail is to Be taken.” The writ is, in form, both a summons addressed to the defendant to appear and defend the suit, and a command, addressed to the sheriff, to take the defendant into custody and keep him until discharged according to law. It is absolutely noneffective as authority to make an arrest until, upon the affidavit of the plaintiff, or some person in his behalf, showing the nature of the plaintiff’s claim (3 Comp. Laws, § 9999), the order directing the amount in which bail is to be taken is indorsed “upon the writ.” It is then, and not until then, a warrant to seize the person of the defendant. It is then issued, and upon probable cause supported by oath or affirmation. The statute does not require the filing of the affidavit with the clerk as a condition precedent to the issuing of the writ. Exhibiting it to the clerk can *507 accomplish no useful purpose. It must in any event be considered by another and a judicial officer. Johnson v. Morton, 94 Mich. 4 . The point is ruled by Baker v. Dubois, 32 Mich. 92 ; Taylor v. Kalamazoo Circuit Judge, 100 Mich. 181 , and not by Buckley v. Lowry, 2 Mich. 418 . See, also, Clark v. Kent Circuit Judge, 125 Mich. 449 . The judgment of the plaintiff against George Schoettle is not void because the writ was prematurely issued.

- The judgment is not void because the writ was not lawfully executed. The testimony produced upon the trial strongly tends to prove that the defendant in the capias suit was, after being taken into custody by the sheriff, rescued not by force, but by a trick. The defendant was a boy about 13 years of age. That he and his father understood that he was under arrest there can be no doubt. Josselyn v. McAllister, 25 Mich. 45 . The father of the boy received from the sheriff copies of the writ and affidavit, and the officer, upon his plea, permitted the boy for the night to go home with his father, who promised to produce him in the morning and did produce him. The father, the boy, and the sheriff journeyed in the morning to Cheboygan by rail. The father desired to confer with counsel, and did so. The sheriff having been induced to go away from the office of counsel so employed to the office of counsel for the plaintiff to confer with them upon the subject of the responsibility of a suggested surety upon a bond to be given to the sheriff, the boy was, by advice of one of the counsel for the father, removed from the county, and, being a resident of Cincinnati, in the State of Ohio, was placed beyond the peradventure of recapture. As to these facts there seems to be no dispute. It is proper to state that the attorney involved in the related transaction was not one of those now appearing for the defendants. 3 Comp. Laws, § 9995, provides the manner of execution of writs of capias ad respondendum. This section was amended in 1899 (Act No. 168, Pub. Acts 1899) so as to read:

*508 “Writs of capias ad respondendum shall be served by the sheriff, or other officer, by arresting the body of the defendant, and keeping him in his custody until discharged according to law, and serving a copy of the writ and of the affidavit or affidavits upon which said writ is founded upon said defendant.”

In this case the sheriff has returned that he served a copy of the summons. He does not in his return mention the affidavit. We are not prepared to say that where the defendant in such an action submits to arrest, and at once sets about obtaining bail, but escapes or is rescued before bail is obtained and during the time apparently devoted to securing such bail, the writ is not so far executed as to involve the sheriff and his sureties, even although a copy of the writ and affidavit has not, in fact, been served on the defendant. The objection, in the absence of a showing of prejudice, would not have availed the defendant in the capias suit. Pixley v. Berrien Circuit Judge, 121 Mich. 629 . We take into consideration, however, the fact that in this case the service of the writ, according to law, might have been at any moment completed, and that the sheriff, if his contention is admitted, would profit by his failure to perform his legal duty.

The judgment is affirmed.

Grant, C. J., and Blair, Montgomery, and McAlvay, JJ., concurred.