Adams v. Hosmer

• Decision Date: 04 December 1893
• Court: Michigan Supreme Court
• Parties: ADAMS v. HOSMER, Circuit Judge.

56 N.W. 1051

98 Mich. 51

ADAMS v. HOSMER, Circuit Judge.

Supreme Court of Michigan

December 4, 1893

Petition on the relation of Ella E. B. Adams for a writ of mandamus to George S. Hosmer, circuit judge of Wayne county. Writ granted.

Charles K. Latham and H. H. Rackham, for relator.

HOOKER C.J.

The complainant filed a bill for divorce, and procured an order of publication upon an affidavit which alleged that the defendant was a resident of the state of Washington. This affidavit was sworn to on Saturday at a late hour, and the order was obtained from one of the circuit judges early Monday morning. Upon the hearing of the case, the bill being taken as confessed for want of appearance, the court (another judge) refused to hear the cause, upon the ground that the court had no jurisdiction. An application is now made for a mandamus to compel the court to hold valid the order of publication, and to proceed and hear said cause. Substituted service is not favored, and all necessary facts to confer jurisdiction must affirmatively appear upon the record; and not only must the statutory affidavit have been made, but it must be a part of the record. The recital of an affidavit in the order is not sufficient. Platt v. Stewart, 10 Mich. 264, and note; King v. Harrington, 14 Mich 532. But the proceeding to acquire jurisdiction of nonresident defendants in chancery differs from those in attachment cases. In the latter the act is ministerial, the writ being issued by the clerk when certain statutory facts appear, among them the fact that the defendant, at the time of issuing the writ, is not a resident of the state. In such cases the court has repeatedly held that the affidavit must be sworn to the same day that the writ issued, to exclude the possibility of the defendant's having become a resident between the dates of the two instruments. Relief was finally obtained from the hardships attendant upon that rule by legislation, but the order must still be obtained upon the day the affidavit is made, unless the statutory distance increases the time within which it must be obtained. In chancery cases, the order is the result of an adjudication that the statutory cause exists. It is true that the affidavit must make a prima facie case, without which the order is invalid, but the degree of proof requisite is not the subject of review, if it can be said that there is a prima facie case. 1 Barb. Ch. Pr. 92; Soule v....