Colton v. Rupert

• Decision Date: 08 April 1886
• Citation: 60 Mich. 318,27 N.W. 520
• Court: Michigan Supreme Court
• Parties: COLTON v. RUPERT.

27 N.W. 520

60 Mich. 318

COLTON v. RUPERT.

Supreme Court of Michigan

April 8, 1886

Error to Huron.

Elbridge F. Bacon, Isaac Marston, and John Atkinson, for plaintiff.

Winsor & Snover, for defendant.

CHAMPLIN, J.

The defendant recovered a judgment in an action of ejectment brought by plaintiff to recover possession of certain land situated in the county of Huron. On the trial both parties claimed title through a common source. The plaintiff was the owner in fee by a purchase from Garret B Hunt and Henry S. Cunningham, made on the seventh day of November, 1865. On the same day he executed and delivered to his vendors a mortgage upon the lands purchased to secure the payment of the purchase price. Defendant claims title through a foreclosure in chancery of this mortgage. The defendant, as a part of his defense, offered in evidence the files and records in the foreclosure proceedings, which showed that the bill to foreclose the mortgage was filed on the fifteenth day of December, 1869; that Garret B. Hunt and Henry S Cunningham were complainants and Palmer Colton was defendant. The record offered was the enrollment, and also, in that connection, the order taking the bill as confessed, recorded in the common order-book, on page 41.

Four objections were taken to the introduction of the evidence namely: (1) Because the court acquired no jurisdiction of the defendant there was no personal service made on the defendant, and the affidavit upon which the commissioner made his order for the appearance of the defendant shows no facts authorizing the commissioner to make such order; (2) that the order of the commissioner was void on its face, as it required the defendant to enter his appearance within two months from the date of such order and the order shows that the defendant is a non-resident of this state; (3) that the order was not published for the time required by law; (4) that it appears from the files in this case that there was no evidence offered before the commissioner by the complainants as to payments, etc.; that as there was no appearance of the defendants, the decree could not be granted, under the law, without the complainants being sworn as to payments.

The first three objections are aimed at the jurisdiction of the court over the person of defendant; the last, to error in the proceedings. The fourth objection does not involve the jurisdiction of the court to pronounce a decree, and can only be taken advantage of in a proceeding in the cause on review or appeal.

The subpoena to appear and answer was issued on the fifteenth day of December, 1869, and was returnable on the twenty-seventh day of December, 1869. It was delivered to the sheriff, who, by his under-sheriff, returned on the return-day thereof, that the subpoena could not be served upon the defendant, Palmer Colton, because he could not be found in his jurisdiction; and that he had made diligent search for said defendant, and he could not be found within his jurisdiction. The solicitor for the complainant thereupon made affidavit as follows: "Richard Winsor, being duly sworn, deposes and says: That he is solicitor for complainants in the above-entitled cause; that the subpoena issued in this cause cannot be served on the defendant by reason of his absence from this state. And deponent further says that the said Palmer Colton, as he is informed and believes, resides at Erie, in the state of Pennsylvania, and further deponent says not."

The principle is well settled in this state that the statute authorizing substituted service of process must be strictly complied with in order to confer jurisdiction upon the court over the property of the defendant which the suit is instituted to reach and subject to the payment of his debt; and it has been held that the affidavit required must show every fact necessary to give the officer jurisdiction to make the order for appearance. Platt v. Stewart, 10 Mich. 260; King v. Harrington, 14 Mich. 532.

In this case the affidavit is positive that the subpoena could not be served upon the defendant by reason of his absence from the state. The place of defendant's residence is stated upon information and belief to be at Erie, in the state of Pennsylvania. The objection urged is that this statement does not amount to proof; that deponent should, at least, have given the source of his information. But there is no requirement in the statute that the person making the affidavit shall give the source of his information; nor does it undertake to prescribe what shall be considered proof of the facts required to be shown by affidavit. Good practice requires that the name of the informant, or the source from which the information is derived, should be stated, not as affording any additional weight to the affidavit as evidence, but as a safeguard and check against false and reckless swearing. The very nature of the facts to be proved are often such that an affidavit upon information and belief is all that can be adduced in the case. The residence of the party may be unknown, and the most diligent search and inquiry fail to elicit any information upon the subject. A defendant may be a non-resident when the mortgage was executed, and that fact may appear upon the face of the mortgage, as was the case here; and yet, when the suit is commenced, it may not be known whether he has changed his residence either to this or some other state. In such case an affidavit upon information and belief is all that could reasonably be required. To require that such proof should be established by such evidence as would preclude all reasonable doubt, or of such character and weight as would preclude a possibility of error, would deprive this provision of the statute, in a large majority of cases, of any efficacy, and result in a failure of the remedy designed to be afforded by the law. The law itself is based upon the necessity of the case, in order to enable parties to reach and deal with property within the jurisdiction of the court. No personal decree can be taken. It is in aid of justice, and the rights of the absent defendant are carefully preserved in cases when a decree has been entered in the cause. He, or his representatives, may appear and be admitted to answer the complainant's bill upon paying or securing the costs, and the cause shall then proceed as if he had appeared in due season; but this appearance must be made in one year after notice in writing of the decree has been given to him, and within seven years after the making of the decree, when such notice shall not have been given. And in cases where the suit is for the purpose of foreclosing a mortgage, the statute provides that "no sale and conveyance, regularly made under the preceding provisions, upon a bill for the foreclosure and satisfaction of a mortgage, shall be affected or prejudiced by the appearance of the defendant within one year, or the seven years hereinbefore specified, nor by any other proceeding; but such defendant, or his representatives, may, at any time within seven years after the decree ordering such sale, file a bill against the complainant, or his representatives, to account for all moneys received by him or them by virtue of such decree over and above the amount justly due on the mortgage, and costs of suit; and the court shall proceed on such bill according to the equity of the case." I shall have occasion to refer to these provisions of the law when I come to the consideration of another branch of the defendant's case.

The record shows that the subpoena was duly issued and placed in the hands of the proper officer for service, and it could not be served because of the absence of the defendant from the jurisdiction of the officer. In this respect, the proceedings were regular, and were free from the infirmity which existed in the case of Soule v. Hough, 45 Mich. 418; S.C. 8 N.W. 50, 159. The affidavit of non-residence was sufficient within the unanimous opinion of this court expressed in the case of Pettiford v. Zoellner, 45 Mich. 358; S.C. 8...