Brooke v. Brooke, 27.

• Citation: 262 N.W. 426,272 Mich. 627
• Decision Date: 09 September 1935
• Docket Number: No. 27.,27.
• Parties: BROOKE v. BROOKE (CITY OF DETROIT, Garnishee).
• Court: Supreme Court of Michigan

272 Mich. 627

262 N.W. 426

BROOKE

v.BROOKE (CITY OF DETROIT, Garnishee).

No. 27.

Supreme Court of Michigan.

Sept. 9, 1935.

Action by Elizabeth Brooke against John H. Brooke, wherein the City of Detroit, Department of Street Railways, was garnisheed. From an order vacating a default judgment against garnishee, the plaintiff appeals.

Order vacating default judgment affirmed.

Appeal from Circuit Court, Wayne County; Fred W. George, judge.

Argued before the Entire Bench.

George H. Heideman, of Detroit (Wm. A. Rankin, of Detroit, of counsel), for appellant.

William J. Kent, Asst. Corp. Counsel, of Detroit (Raymond J. Kelly, Corp. Counsel, of Detroit, of counsel), for appellee.

BUSHNELL, Justice.

The sole question presented by this appeal is the construction of that portion of 3 C. L. 1929, § 14098, which reads:

‘In suits or proceedings against municipal and public corporations, and certain unincorporated boards, service of process may be made as follows: * * *

‘3. Against cities, upon the mayor, city clerk or city attorney.'

Is the word ‘may’ permissive or mandatory?

Plaintiff, a judgment creditor of a city employee, after serving successive writs of garnishment on the city upon which disclosures were made, finally served ‘Kelly Mohan Garnishment Clerk,’ said to be an employee of the city treasurer's office. No disclosure having been made, plaintiff took a default judgment for $2,619.20 against garnishee defendant on July 28, 1931. A mandamus proceeding instituted July 8, 1932, to require payment of the judgment resulted in a motion by the city to vacate the judgment. Plaintiff appeals from the order granting the motion.

If the service of the writ of garnishment was void, the questions raised as to the seasonableness of the motion, estoppel, affidavit of merits, etc., need not be considered.

‘The proceedings in garnishment are statutory, and to the statute we must look to determine their validity.’ Detroit Independent Oil Co. v. Miller, 235 Mich. 191, 209 N. W. 102, 103.

The word ‘may’ in the statute quoted is unquestionably permissive as to service upon ‘the mayor’ or ‘city clerk’ or ‘city attorney.’ Is it mandatory, in that it excludes service of process upon all other officers and employees?

We held in Boyle v. City of Detroit, 152 Mich. 248, 115 N. W. 1056, that service of a declaration upon a clerk in the office of the corporation counsel was a nullity ‘and that a defendant cannot be defaulted upon a void service of summons.'

In construing a provision of the charter of the city of Menominee reading ‘all process against the city shall run against the city in the corporate name thereof and may be served by leaving a certified copy with the mayor, city clerk or city attorney,’ etc., we held service of declaration with rule to plead good when made upon the city clerk and the mayor. City of Menominee v....