People v. Buchanan , 9 Mich. App. 1 ( 1967 )

Quinn, J.

Defendant was arrested on a charge that he knowingly and wilfully obstructed, resisted or opposed a deputy sheriff of Gratiot county while the officer was attempting to execute a bench warrant or writ of attachment for defendant’s arrest, contrary to the provisions of CL 1948, § 750.479 (Stat Ann 1954 Rev § 28.747). Preliminary examination was had and defendant was bound over to circuit court for trial. After the information was filed, defendant moved to quash because the officer did not have the writ of attachment in his possession at the time of arrest, did not read it to defendant, and did not serve a copy thereof on defendant, hence the attempted arrest was unlawful and defendant could legally resist it. This motion was denied and defendant appeals.

The issue for decision is whether one may be legally arrested on a writ of attachment issued in a divorce action to enforce support payments for minor children ordered in the judgment of divorce without being shown the writ and served with a copy.

There is no dispute on the facts; they have been stipulated as follows: defendant is the defendant in a divorce action filed in Gratiot county in which he was ordered to make support payments for minor children. He is delinquent in such payments and was so notified by the friend of the court for Gratiot county, and he failed to respond to such notice. Thereafter, the friend of the court petitioned for and obtained the writ of attachment here involved. Defendant concedes all actions taken to obtain the writ were proper. (See GCR 1963, 727.3 and 727.4.) The writ was delivered to the sheriff for execution; the arresting officer knew the writ was in existence, although he did not have it in his possession at the time of arrest. At the time of defendant’s apprehension, the officer said to him, “I am arresting you on a writ of attachment for failure to pay support money.” Defendant attempted to run and a scuffle ensued which gave rise to these criminal proceedings.

Defendant contends that the writ involved is civil process, that PA 1961, No 236, § 1968(4) (CLS 1961, § 600.1968 [4] [Stat Ann 1962 Rev § 27A.1968(4)]) and G-CR 1963, 107(2) prescribe the manner of service, and that service in any other manner is unlawful and resistance thereto is not a violation of CL 1948, § 750.479, supra.

This argument falls because its basic premise is erroneous. The process involved is criminal in nature (see Carnahan v. Carnahan (1906), 143 Mich 390; In re Wilkowski (1935), 270 Mich 687), and the statute and rule relied on do not apply. We hold defendant’s arrest was legal and the motion to quash was properly denied.

Affirmed.

Lesinski, C. J., and Baum, J., concurred.