Hayes v. Ross , 236 Mich. 208 ( 1926 )

The trial judge was of the opinion that the provisions of section 13132, 3 Comp. Laws 1915, requiring demand for a trial within ten days was mandatory, but he also held that, if discretionary, his discretion was not moved by the showing made, and he therefore denied the motion of the trust company to extend the time in which to file such demand and also refused permission to file the amended disclosure. We think these matters were both within his discretion. We think the concluding sentence of the section, "the time for filing said demand may be extended by the court upon application and showing," refers to the demand for trial rather than to the demand for a jury, as no time is fixed in this section for demanding a jury. See Muncey v. Sun Insurance Office, 109 Mich. 542 . But we are not persuaded that the trial judge abused his discretion. The application was not made until over two years after the filing of the testimony and we are not persuaded the delay was sufficiently excused. No demand for trial having been made by either party, the case stood on the garnishee's disclosure, which, under the statute, included the examination before the commissioner. If the disclosure and examination did not fix liability, plaintiffs could not have had judgment. If it did show liability, they were entitled to judgment. In Allen v. Hazen, 26 Mich. 142, Mr. Justice COOLEY, speaking for the court, said:

"We think the court misapprehended the nature and purpose of the garnishee's disclosure, when rejecting it as evidence. The disclosure does not stand upon the same footing as the testimony of a witness; it is the answer of a party; and the plaintiff may take judgment upon it if it discloses a liability, unless the garnishee demands a trial. And if a trial is demanded, the disclosure is evidence for the plaintiff, and the garnishee is not even permitted to show errors or mistakes therein, except in the discretion of the court (Sess. L. 1861, p. 564, § 15), a discretion, however, which ought to be liberally exercised where the disclosure is made without the assistance of counsel. Such being the statute, it is manifest that the disclosure is somewhat analogous in its function to an answer in chancery; whatever is admitted by it the plaintiff may treat as established, and he is under no necessity to call witnesses to the same points, when the only purpose could be to support an admission which has been made by a party deliberately and against his own interest."

As we have pointed out, the testimony taken before the commissioner established liability of the garnishee defendant, and, therefore, authorized a judgment for plaintiffs.

The affidavit for the writ of garnishment alleged that the amount "now due" the plaintiffs from the principal defendant "is the sum of $3,500." There was no allegation that the interest rate had been agreed upon. In the absence of such an agreement that sum then due bore only the statutory rate of interest. The allegation in the affidavit can not be taken as more than an allegation that plaintiffs claimed $3,500 and statutory interest. Under the garnishee statute, above cited, the affidavit "shall be held and considered as a declaration." If the affidavit is to be held to be the declaration, it is obvious that the amount claimed in it is the ad damnum of such declaration. The rule is well recognized that the recovery can not exceed the amount alleged in the ad damnum clause of the declaration. Here there was an allegation that there was due at the date of the affidavit $3,500; to this amount the law added 5 per cent. interest until the debt was paid and a recovery beyond that amount would exceed the ad damnum of the declaration. The trial judge allowed interest at 7 per cent. In the absence of an allegation in the affidavit that the indebtedness bore greater than the statutory rate this was not authorized.

The judgment will be vacated and the case remanded with direction to enter judgment for $3,500 and interest at 5 per cent. from the date of the affidavit to the date of the judgment. Cost of transcript and printing the record will be equally divided between plaintiffs and the trust company. No other costs will be allowed.

BIRD, C.J., and SHARPE, SNOW, STEERE, WIEST, CLARK, and MCDONALD, JJ., concurred.