notice of the hour at which the court convened, and his absence thereafter must be regarded as voluntary, and the court would have been justified in treating it as a waiver of his right to be present. The verdict first rendered must be treated as valid, and the writ must therefore be denied. The other Justices concurred. MILLARD v. LENAWEE CIRCUIT JUDGE. 1. GARNISHMENT--SUFFICIENCY OF AFFIDAVIT. 2. SAME-CLERICAL ERROR IN SUMMONS. A garnishee summons which, by a clerical mistake, warns the agent of the plaintiff who made the affidavit, instead of the garnishee, to pay no more money to the principal defendant, is not fatally defective, but may be amended so as to conform with the statute. Mandamus by Ida M. Millard to compel Victor H. Lane, circuit judge of Lenawee county, to vacate an order quashing certain proceedings in garnishment. Submitted November 5, 1895. Granted November 19, 1895. Watts, Bean & Smith, for relator. Morgan & Priddy, for respondent. GRANT, J. Relator sued one Mrs. Hays, garnishing Waldby & Clay's State Bank. The bank filed a disclosure, and afterwards moved to quash the garnishee pro ceedings, which motion prevailed. The object of this petition is to set aside that order. 1. The affidavit for the writ of garnishment was made before the original suit was commenced, but on the same day, and stated that "a suit was about to be commenced.” The statute does not require the affidavit to be made at the time of or after the commencement of suit, but provides that such affidavit shall be filed with the clerk "at the time of or after the commencement of suit." 3 How. Stat. § 8058. Where the affidavit is made upon the same day with the commencement of suit, the court acquires jurisdiction. 2. The affidavit was made by Henry C. Smith, as agent and attorney of plaintiff. The garnishee summons was drawn upon a printed blank, reciting that a suit had been commenced against the principal defendant, and by a clerical mistake it warned the said "Henry C. Smith, agent and attorney of Ida M. Millard, thenceforth to pay no money to the said Mrs. J. A. Hays." The statute requires the garnishee defendant to be warned to pay no money to the principal defendant. The court below held the failure to do this to be a fatal defect, and quashed the proceedings for that reason. We think the court was in error. The summons unmistakably showed upon its face that this was a clerical error. It required no extraneous evidence to show it. It follows that the amendment of the writ was proper, and should have been allowed, permitting the insertion of the name of the bank in place of Henry C. Smith. The writ will issue as prayed. The other Justices concurred. 107 136 s64NW1045 130 387 107 136 143 97 f143 194 SHERWOOD v. IONIA CIRCUIT JUDGE. JUSTICES OF THE PEACE-APPEAL BOND-WAIVER OF DEFECTS. Mandamus by Josiah W. Sherwood and another to compel Frank D. M. Davis, circuit judge for Ionia county, to dismiss an appeal from justice's court, and to vacate an order requiring relators to file security for costs. Submitted November 5, 1895. Denied November 19, 1895. John Nichol, for relators. Dwight Goss, for respondent. MONTGOMERY, J. Relators recovered a judgment before a justice of the peace against Lida A. Miller on the 29th day of April, 1895. An appeal was taken within the five days allowed by statute, a proper affidavit being filed, and a bond in amount sufficient and in proper form, save that the affidavit showing the responsibility of the sureties was sworn to before a notary public. The statute (3 How. Stat. § 7000) requires that the bond or recognizance shall be taken before the justice by whom the judgment is rendered, or by some other justice of the peace of the county, or by the county clerk, and section 7001 provides that no justice of the peace or county clerk shall take any bond or recognizance on appeal unless the person or persons entering into the same as surety justifies his or their responsibility on oath. Subsequently, and on the 17th of May, the relators entered a general appearance in the circuit court. In July a motion for security for costs was made by defendant. The notice of this motion was insufficient, and, on the same day on which the motion was noticed to be heard, an order was made requiring plaintiffs to show cause why security should not be ordered. On the return day of this order relators entered a motion to dismiss the appeal on the ground that the bond was insufficient for the reason that the justification was not taken before the proper authorities, and opposed the motion for security on the same ground. The circuit judge ordered security, and refused to dismiss the proceeding. Mandamus is now asked to compel the circuit judge to enter an order of dismissal. In their petition the relators state that they entered the motion to dismiss "in response" to the order to show cause why the security should not be required. We assume that this is the fact, as it is quite evident that plaintiff's were not apprehensive that the bond was insufficient for their protection. A general appearance gives jurisdiction, and is a waiver of defects in the bond, at least to the extent that after such appearance it is not the right of the defendant to have the case dismissed. 1 Enc. Pl. & Prac. 1000, 1001; McCombs v. Johnson, 47 Mich. 592. We do not hold that before an appearance the appellee may not move in form for a dismissal on account of a defect in the bond, or that on such motion the circuit judge may not enter an order nisi for the dismissal on failure to file a new bond; but a general voluntary appearance is a waiver of the right to insist on a dismissal for mere formal defects. The appellee may still have the right to move for a new bond on a proper showing, but such is not the motion in this case. On the contrary, the present motion is an attempt to assert a technical right, which the appellees had waived, "in response" to an application which defendant had a perfect right to make. The writ will be denied, with costs. The other Justices concurred. O'HALLORAN v. MAYOR AND RECORDER OF JACKSON. 1. LIQUOR BONDS-APPROVAL BY CITY COUNCIL. General provisions of a city charter regulating the enactment of ordinances and resolutions have no application to the performance of the duty imposed upon the common council by section 8 of the liquor law of 1887 (3 How. Stat. § 2283d1) with reference to the approval of liquor bonds. 2. SAME. Under the statute cited, a majority vote of the members present at a legal meeting of the council is sufficient to approve the bond, in the absence of conflicting provisions in the charter. 3. SAME-AUTHORITY OF MAYOR. The approval of the bond by the mayor is unnecessary, where the charter does not require it; and the fact that under the charter all ordinances and resolutions must receive the approval of the mayor, and that a provision enacted subsequent to the general liquor law confers upon the council the power to regulate, license, prohibit, and suppress saloons, does not necessitate the mayor's approval of the bond, where no action has been taken by the council under the power so conferred. Certiorari to Jackson; Peck, J. Submitted November 5, 1895. Decided November 19, 1895. Edward O'Halloran and Charles Elliott applied to the circuit court for mandamus against Andrew J. Weatherwax, mayor, and Charles P. Hunt, recorder, of the city of Jackson, to compel the approval of a liquor bond. The writ was issued as against the respondent Hunt, who brings certiorari. Affirmed. Blair, Edwards & Blair, for relators. William E. Ware, city attorney, for petitioner in certiorari. LONG, J. On June 8, 1895, the relators presented their liqour bond to the common council for approval. No |
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