Fraser v. Collier Construction Co. , 305 Mich. 1 ( 1943 )

The initial and essential procedure to vest jurisdiction was issuance of a writ of garnishment upon a proper showing of the actual parties creditors of the principal debtor. The affidavit upon which the writ of garnishment issued was by plaintiff James W. Fraser, Jr., and averred the principal defendant was indebted to him in the sum of $23,146.36. Later a declaration of like import was filed. In its answer thereto, by way of special defenses the principal defendant alleged:

"That the said suit was not brought in the name of the real party in interest.

"That plaintiff individually cannot, and is not entitled to, maintain this suit or to recover against the defendant for any of the matters set forth in his declaration or bill of particulars; that the contract respecting the same was made with, and the said work was done and performed under and pursuant to said contract by the said Fraser Construction Company, a firm or copartnership consisting of William J. Fraser and James W. Fraser, Jr., members or copartners."

The original plaintiff confessed, by motion for and obtaining a court order adding as a necessary party plaintiff William W. Fraser, that he had no right to sue out a writ of garnishment as sole party plaintiff. The proceeding by garnishment as here under 3 Comp. Laws 1929, § 14885 (Stat. Ann. § 27.1883), is special,in rem, and to be strictly construed in order to give jurisdiction. The general statute, 3 Comp. Laws 1929, § 14021 (Stat. Ann. § 27.665), relative to nonjoinder and misjoinder of parties cannot be employed in the instance at bar where jurisdiction of the court rests upon invocation by the proper person. When the court added plaintiff's brother as a plaintiff the case was no longer that brought under the special garnishment statute and jurisdiction of the court ended.

The judgment should be reversed, with costs to defendant.

BUSHNELL, J., concurred with WIEST, J.