precept to commit the person so disobeying to prison until such sum, and the costs and expenses of the proceeding, shall be paid," is to enable courts to enforce interlocutory orders, no other means of enforcement being provided by statute. 2. On the hearing of a motion to dismiss an appeal from justice's court for the failure of the appellant to pay certain costs and for defects in the appeal bond, an order was made requiring the payment of said costs and the amendment of the bond within 10 days, or in default thereof the appeal be dismissed. The order further required the appellant to pay to the attorney for the appellee an attorney fee of $5. The order was not complied with. Contempt proceedings were instituted because of the non-payment of said attorney fee, and the appellant was adjudged guilty of a criminal contempt, and an order was made that he forthwith pay said fee and the costs of the contempt proceedings, and that he remain imprisoned in the common jail of the county until such payment should be made, or until he should be thence discharged by due course of law. And it is held that the case must be treated as though the correct practice had been followed,-making the payment of costs one of the conditions of the order, and a part of the judgment in case of non-compliance; that the court had ample power to enforce its order, and to award an execution for the costs, and could not, by the mere form of the order, deprive the appellant of the protection of How. Stat. § 7257, subd. 3, which confines the remedy by contempt proceedings to cases where, by law, execution cannot be awarded. Certiorari to Saginaw. (McKnight, J.) Argued October 25, 1894. Decided November 20, 1894. Certiorari to review an order of the circuit court committing plaintiff for contempt. Reversed. The facts are stated in the opinion, and in 99 Mich. 347. John F. O'Keefe (Weadock & Purcell, of counsel), for plaintiff and petitioner in certiorari. Bauer & Eaton, for defendant. MCGRATH, C. J. This is certiorari to the circuit court to review an order committing plaintiff for contempt. Swarthout brought suit in justice's court against Elizabeth Lucas. Defendant had judgment, from which plaintiff appealed. On motion to dismiss the appeal, the following order was entered: "In this cause, motion having been made by Fred. L. Eaton, Jr., attorney for the defendant and appellee, to dismiss the appeal for failure to comply with the statute, after hearing counsel for the respective parties therein, it is ordered that the said plaintiff and appellant pay to the said defendant and appellee the sum of $17.75, justice's fees in said cause, as provided for in section 7003, Howell's Annotated Statutes, and the bond in said cause be amended, within 10 days; and, in default of said plaintiff complying with said conditions as aforesaid within said time, the said appeal to be dismissed. "And it is further ordered that the said plaintiff pay to the said defendant's attorney the sum of $5, as an attorney fee for said motion." The purpose of section 7260, How. Stat., is to enable courts to enforce interlocutory orders, no other means of enforcement being provided by statute. Section 7257 expressly confines the remedy by contempt proceedings to cases where, by law, execution cannot be awarded. Section 7021 expressly provides that, if an appeal be dismissed or discontinued, the court shall enter judgment in favor of the appellee for costs. In Detroit & Birmingham Plank Road Co. v. Circuit Judge, 27 Mich. 303, it was held that the proper practice, in case of a motion to dismiss an appeal for defects in the affidavit or bond, is to make an order nisi that the appeal be dismissed unless, within a time specified, a new and correct affidavit or bond be filed. The court had the power to enter such an order, and to make the payment of the costs one of the conditions, and a part of the judgment in case the other conditions were not complied with. The case must be treated as though such practice had been followed. The court having ample power to enforce its order, and to award an execution for the costs, it could not, by the mere form of the order, deprive the party of the protection of the statute. The order adjudging plaintiff guilty of contempt must be set aside, with costs against defendant. The other Justices concurred. THERESA BERLES V. ALLEN C. ADSIT, CIRCUIT JUDGE of Husband and wife-Competency as witnesses-Garnishment. Under 3 How. Stat. § 7546, which provides that "a husband shall not be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent," except in certain cases, a wife, when garnished in a suit against her husband, cannot, without his consent, be examined as to transfers of property made to her by her husband. Mandamus. Argued October 23, 1894. Granted November 20, 1894. Relator applied for mandamus to compel respondent to set aside her default, entered in a garnishee suit because of her refusal to submit to an examination. The facts are stated in the opinion. Fletcher & Wanty, for relator. McGarry, McKnight & Judkins, for respondent. MONTGOMERY, J. An action was commenced in the circuit court for the county of Kent by the Peninsular Stove Company, as plaintiff, against Joseph Berles. Garnishee proceedings were also instituted against Theresa 102 495 108 193 Berles, the relator, who is the wife of Joseph Berles. Judgment was rendered against the principal defendant. The affidavit for a writ of garnishment set forth that the garnishee defendant had property, money, goods, chattels, and effects in her hands and under her control, belonging to the principal defendant, Joseph Berles, which she held by a conveyance or title that was void as to creditors of Joseph Berles; the proceedings being based upon 3 How. Stat. § 8091. Relator answered, denying liability. She was thereupon cited to appear and submit to an examination before respondent. She appeared, and, it appearing that she was the wife of the principal defendant, the attorney for her husband objected to her being examined in regard to the transfer of the property in question, on the ground that he, the husband, was a party to the action, and that her testimony would be against him, and therefore incompetent. The objection was overruled, and, the relator declining to answer the questions, plaintiff entered her default for refusing to submit to an examination. The relator moved to set aside the default on the ground that she could not be compelled to submit to such examination. This motion was overruled, and the present application is made for an order requiring the circuit judge to set aside the default. The question involved is whether, in a garnishee proceeding, the wife of the principal defendant may be examined as to transfers of property made to her by the husband. 3 How. Stat. § 7546, provides that "a husband shall not be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent," except in certain cases not necessary to be stated here. Was the wife competent to testify in this proceeding as a witness for or against her husband? The proceeding is analogous to a judgment creditor's bill in aid of execution. In De Farges v. Ryland, 87 Va. 404, it was held in such case that the transferee, the wife, was not competent to testify against the objection of her husband. The same holding was made in Niland v. Kalish, 37 Neb. 47. We are cited to Thompson v. Silvers, 59 Iowa, 670, which sustains the respondent's contention. But we find the Iowa statute differs materially from ours. We think the objection of the husband was valid, and should have been sustained. The writ will issue. The other Justices concurred. JAMES GARDNER V. FRANK HICKOCK. Forcible entry and detainer-Complaint-Description of premises. 1. In proceedings for forcible entry and detainer, the description of the premises must be sufficiently definite to enable the officer executing the writ to restore complainant to possession, and exclude the defendant therefrom.' 2. The complainant, claiming to have been forcibly excluded from the possession of a portion of a stable leased of the defendant, instituted proceedings for forcible entry and detainer. The premises were described in the complaint as "the following described lands and premises, situate in the village of Allegan, in said county, to wit: The first two stalls at the left of the entrance to the first floor, and standing room on that floor for a buggy, and the north half of the upstairs, of the third entrance, counting from the north side, to the building known as the Rink Building,' situate on the east side of Water street, in the village of Allegan, situate on lots 232 and 233." And it is held that the description is too indefinite to enable 1See Clark v. Gage, 19 Mich. 507. 102 MICH.-32. |