
    Lester F. Hitchcock v. John B. Sutton and another.
    
      Certiorari; Want of evidence : Presumption; Return. Where an affidavit for certiorari to review proceedings before a circuit court commissioner to dissolve an attachment, assigns as an error the entire absence of evidence to sustain the ground of attachment set forth, of an intent to dispose of property to defraud creditors, it will not be presumed that there was other evidence than that returned by the commissioner, and if there was in fact other evidence, the proper recourse for the defendant in certiorari is to apply for a further return.
    
      Heard October 7.
    
    
      Decided October 8.
    
    
      Certiorari to Henry A. Birdsall, circuit court commissioner for Lapeer County.
    
      William Hemingway, for plaintiff in certiorari.
    
    
      H. Geer, for defendants in certiorari.
    
   Cooley, J.

This is a proceeding by certiorari to review the decision of a circuit court commissioner on an application for the dissolution of an attachment.

The ground of the attachment was that the judgment debtors, of whom the plaintiff in certiorari was one, were about to dispose of their property with intent to defraud their creditors. The chief error relied upon in the affidavit for certiorari was that there was no evidence before the commissioner showing or tending to show that they or either of them had such an intent.

The commissioner’s return certainly shows no such evidence. It is objected, however, that the retufn does not expressly state that all the evidence is returned, and it is therefore presumable that there was evidence to sustain the commissioner’s conclusions. But where the error assigned in the affidavit is the entire absence of evidence on a specified point, it is the duty of the commissioner to return fully; and we think from the commissioner’s return, in which be states that he returns “a statement of all plaints levied or affirmed before me, together with all things touching the same” in the proceeding mentioned, that his purpose has been to make the return a full response to the affidavit. If in fact other evidence was given, defendants in the certiorari should have applied for a further return.

The order of the commissioner must be reversed, and the attachment dissolved. And plaintiff in error must recover costs before the commissioner, and in this court.

Graves and Campbell, JJ., concurred.

Christiancy Ch. J., did not sit in this case.  