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has not appeared: Comp. L. § 5263; Vliet v. Westenhaver 42 Mich. 593; Smalley v. Lighthall 37 Mich. 350; Alverson v. Dennison 40 Mich. 180; Denison v. Smith 33 Mich. 158; Ellis v. Fletcher 40 Mich. 321; Wells v. Walsh 25 Mich. 344; Wight v. Warner 1 Doug. (Mich.) 384; Brown v. Cady 19 Wend. 477; Wheeler v. Lampman 14 Johns. 481; Thayer v. Tyler 10 Gray 164; judgment in garnishment cannot be given without a valid judgment against the principal defendant: Drake on Attachment, §3 460, 658 a 692, 696, 711, ch. 37; Railroad Company v. Todd 11 Heisk. 555; People v. Wayne Circuit Judge 26 Mich. 100; Gaines v. Beirne 3 Ala. 114; Leigh v. Smith 5 Ala. 583; Lowry v. Clements 9 Ala. 422; Blair v. Rhodes 5 Ala. 650; Bostwick v. Beach 18 Ala. 82; Case v. Moore 21 Ala. 761; Proseus v. Mason 12 La. 16; Rose v. Whaley 14 La. Ann. 374; Seawell v. Murphy Cooke (Tenn.) 479; Clough v. Buck 6 Neb. 343; Cota v. Ross 66 Me. 166.

Maybury & Conely for defendant in error.

GRAVES, J. Mrs. Morrow was indebted to one Hancock in the sum of $109 for goods sold and delivered, and Laidlaw, claiming to have acquired the demand by assignment from Hancock, sued Mrs. Morrow therefor. She resisted on the ground that she had been garnished by two of Hancock's creditors and had been compelled in those proceedings to pay the demand on their claims. The circuit judge allowed this defense, and the main question relates to its validity.

The principal cases directly against Hancock and the cases of garnishment incidental to them were before a justice of the peace, and the recorded proceedings in all were adduced in evidence on the trial of this action. The service on Hancock in the principal cases was by leaving a copy of the summons at defendant's last place of abode, and there was no other process or service and he never made appearance. On the return day and on the strength of this service the justice. proceeded to hear the cases, and immediately rendered judgments against Hancock.

The summons in garnishment were returnable on the same day as those in the main cases, December 27, 1879; and the only evidence of service was a written admission to which was subscribed the name of Mrs. Morrow. She did not appear before the justice, but on being called on at her place of business by the attorney for the plaintiff she there subscribed and made oath to a disclosure which the attorney filed with the justice. She acknowledged in this paper that she was indebted to Hancock in the sum of $113 at the time she was served with process.

A summons to show cause in each case was then issued, returnable December 30th, and the only evidence of service was a written admission bearing her name. She did not appear and no evidence was offered to prove the genuineness of the signature attached to the admission. The usual declarations were made, and thereupon the justice rendered judgment against her on the admission in the disclosure. She never took any objection to the proceedings, and on the 7th of January following the justice issued execution, and Mrs. Morrow on demand by the constable paid the debt to him.

Whether the proceedings in the garnishee suits proper might not be upheld in favor of the garnishee against this collateral attack need not be considered. The court would struggle to save a garnishee acting fairly and in good faith from paying a debt twice.

The law which regulates this proceeding contains many defects, and not the least among them is the want of suitable express provisions for guarding and protecting the rights of garnishees in respect to interests belonging to or claimed by parties other than the garnishee debtor, and for guarding and protecting the rights of parties claiming adversely to the various parties litigating. The act concerning this remedy in courts of record contains a provision bearing on this subject (Comp. L. § 6492), but it is quite partial and imperfect. But those courts from their inherent authority to make rules. and apply their power to prevent injustice may to some extent perhaps, supply omissions and ward off mischiefs. The law applicable to justices' courts has no such provi

sion, and from their constitution and limited authority those tribunals are incapable of any such discretionary

power.

In the present case a difficulty appears which cannot be surmounted. The judgments against Hancock, the principal debtor, were void upon their face. They were given on the return of summons served by copy left at defendant's abode, and without any appearance. For the purpose of jurisdiction to render judgment there was no service at all, and there being no appearance, the right depended on service and that exclusively. $$ 5262, 5263, 5350.

The cases against Hancock became discontinued, and the plaintiffs therein have never become his judgment creditors. This appeared on the face of the docket when Mrs. Morrow allowed the proceedings to go on against her and without objection. In permitting this and in subsequently paying the demand she acted at her peril. The law denies jurisdiction to the justice to give judgment against the garnishee when the principal suit has become discontinued and the plaintiff has not become judgment creditor of the principal defendant. There is then no basis for the further prosecution of the case in garnishment. It is only incident to the main case and it must fall when that falls. § 6449.

No further consideration is necessary. The judgment must be reversed with costs and a new trial granted.

CAMPBELL, J., concurred.

MARSTON, C. J. No valid judgment can be rendered in justice's court against a garnishee defendant until after a judgment has been rendered against the principal defendant in a cause wherein the justice had jurisdiction. 2 Comp. L. SS 6446-6449; McCloskey v. Judge of Wayne Circuit Court 26 Mich. 100.

In the principal cases the justice acquired no jurisdiction over the defendant, there being no appearance, because of a defective service of process, as appeared by the return of the

officer. The return, a copy of which is given in the margin,* does not show that Howell was one of the family, or that the copy was left at the defendant's last place of abode, in the presence of some one of the family as the statute requires. $5262. It may be, had sufficient facts been set forth in the return, that Howell was one of the family within the meaning of the statute, but this we cannot presume.

The judgment must be reversed with costs and a new trial ordered.

The other Justices concurred.

WILLIAM H. EBERTS ET AL. V. AARON C. FISHER ET AL.

Partition-Averments of interests.

A bill for partition averred that the land was devised to eleven heirs who were named; that seven had assigned to defendant, who holds sevenelevenths of the property, and that complainants, who represent four of the heirs, claim the rest. Held, that it sufficiently averred defendant's interest and would be good for a union of four-elevenths in complainants, if it did not, indeed, show that each held one-eleventh.

Each of several devisees, standing in the same relation to the devisor, is presumed to hold an equal interest with each of the others if his interest is not expressed.

The holder of an inchoate lien for paving taxes, in the shape of a redeemable lease, need not, under Comp. L. § 6274, be made a party defendant to a bill for the partition of the property; it is proper however to make him so, and in case of non-redemption the lien may be made chargeable on the defendants, as the final form of relief may make suitable.

* STATE OF MICHIGAN, COUNTY OF WAYNE, ss:

The defendant not being found, I served the within summons on the twentieth day of December, A. D. 1879, at the city of Detroit, within the said county, by leaving a copy thereof at the defendant's last place of abode, with C. P. Howell, a person of suitable age and discretion, who was informed by me of the contents.

W. W. WITHERSPOON, Constable.

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"An estate in possession" within the meaning of the statute for partition (Comp. L. § 6268) means merely an estate in present enjoyment, whether occupied by defendants' tenants or entirely unoccupied. Where a tenant in common of land in partition is also a lessee of the land, it saves circuity of action to consider all of his claims together; but the jurisdiction does not depend on so doing.

Allegations in a bill for partition, as to the rights and obligations of tenants of the defendant, could only be a ground of demurrer by the tenants themselves; and being only collateral to the regular issues in partition, there is no legal objection to averring or establishing any facts that would determine the relative interests of all parties. Any facts bearing upon the termination of the lease by forfeiture or otherwise are pertinent, as the object of the bill is not properly to enforce a forfeiture, but to determine the right to a partition and the extent of the property to be partitioned.

There is no rule that equity will not recognize a forfeiture when it is only one of the incidents of a past transaction.

Where defendants in partition desire to rely on a lease made by them they must include such averments in their answers as will enable them to maintain their interests, so that, whether the land is partitioned or sold, equities may be adjusted in it or in its proceeds.

Appeal from the Superior Court of Detroit. Submitted October 29. Decided November 9.

BILL for partition. Dismissed on demurrer. Reversed.

Alfred Russell for complainants.

Charles M. Swift and E. Y. Swift for defendants.

CAMPBELL, J. This is a bill filed for partition. As some questions are presented touching various classes of interests it will be necessary to refer to the substantial averments of the bill as bearing upon each. The court below on demurrer dismissed the bill absolutely.

It avers as to the fee of the land, that it was owned by Phillis Eberts who died testate and devised the land to the children of her three brothers. Those children are all named, and are eleven in number. Four of them are represented by the complainants, and seven are alleged to have assigned to Aaron C. Fisher, who is said to hold seven-elevenths.

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