Dailey v. Kennedy

• Decision Date: 13 January 1887
• Citation: 31 N.W. 125,64 Mich. 208
• Court: Michigan Supreme Court
• Parties: DAILEY v. KENNEDY.

31 N.W. 125

64 Mich. 208

DAILEY v. KENNEDY.

Supreme Court of Michigan

January 13, 1887

Error to circuit court, Montcalm county.

Assumpsit. Attachment and garnishment.

George S. Steere, for defendant in error.

George H. Cagwin, for plaintiff in error.

CHAMPLIN, J.

The suit in this case was commenced by attachment, before a justice of the peace, and on the same day a garnishee summons was issued and served upon one Carl C. Clark. On the return-day of the attachment writ the officer returned the writ, with his certificate thereon indorsed that he had been unable to find any goods and chattels within his county belonging to the defendant; and, further, that he had been unable to find any last place of residence of the defendant within said county; and, further, that he had served garnishment papers upon Carl C. Clark upon the tenth day of May, 1884, and left with him a certified copy of the writ and, further, that he was unable to find the defendant within his county. The plaintiff appeared, but the defendant did not appear, upon the return-day, and the justice adjourned the cause to a day certain, more than 30 days from the return-day. Upon this day the plaintiff appeared, and the defendant appeared specially, and moved to dismiss the proceedings for the reason that the return of the officer did not show that he used due diligence to find the defendant, or ascertain whether the defendant had a last place of residence in his county; that it did not show that the defendant had no last place of residence in the county; that it was no service of the writ to leave a copy with the garnishee defendant Carl C. Clark, on the tenth day of May, 1884, and such service is only authorized when the defendant cannot be found in the county, and has no last place of residence therein that the officer's return was not sufficient to give the court jurisdiction, as it showed neither personal nor substituted service, as required by law. The motion was overruled, and the defendant then appeared generally, and pleaded the general issue, and gave notice of certain facts which he should show by way of recoupment of damages. By express consent of the parties, two adjournments were thereafter had, when the parties proceeded to a trial of the merits, each side introducing witnesses among whom were the parties. The trial resulted in a judgment for the plaintiff, and the defendant carried the case, by special appeal, to the circuit court. The errors alleged in the affidavit for the special appeal were based upon the decision of the justice in overruling the motion made by the defendant to dismiss the proceedings for want of jurisdiction.

The cause of action was assumpsit, and the amount claimed by the plaintiff as due him upon express contract was $40.20. The justice, therefore, had jurisdiction of the action and the subject-matter, and the only jurisdictional point raised is that the court did not obtain jurisdiction over the person of the defendant.

It is not necessary, in the determination of this case, to decide whether the court obtained jurisdiction over the person of the defendant by the return of the officer, or by virtue of the garnishee proceedings. The questions touching upon that point are very thoroughly argued by counsel for the defendant in his brief. The questions raised in the special appeal were presented to the circuit court, and were decided adversely to the defendant. A trial had in that court, upon the merits, resulted in a judgment for the plaintiff.

It is said by the counsel for defendant in his brief that the decision of the court below upon the points raised in the special appeal was made in reliance on the case of Manhard v. Schott, 37 Mich. 234. We do not see how that case is distinguishable from this, and counsel for defendant has not attempted to distinguish it, but has contented himself by asserting that, if that case so decides, it has not been the law, and ought not to be. In Manhard v. Schott Mr. Justice CAMPBELL said. "Instead of resting on the defective service of process to confer jurisdiction, all of these defendants joined in pleading in bar to the merits, and the case was regularly tried on their plea. Pleading to the merits brings the parties before the court, whether lawfully served with process or not, and they cannot thereafter object to the manner in which they are brought in;" citing Hart v. Blake, 31 Mich. 278; Crane v. Hardy, 1 Mich. 56; and Pardee v. Smith, 27 Mich. 33-38. To the same effect are Ripley v. Warren, 2 Pick. 592; Carlisle v. Weston, 21 Pick. 535; Simonds v. Parker, 1 Metc. 508; Wilmarth v. Knight, 7 Gray, 294; Blackwood v. Jones, 27 Wis. 498; Baizer v. Lasch, 28 Wis. 268; Isabella v. Iron Cliffs Co., 23 N.W. 613.

No valid or sufficient reason can be advanced to show why a voluntary appearance, and pleading to the merits, should not be held a waiver of all objections to the manner in which the defendant is brought into court. After such plea is interposed, the justice either has or has not jurisdiction over the person of the defendant. If he has not, he has no authority to proceed in the trial, or render a valid judgment. The question does not depend upon the event of the trial. When the defendant joins issue upon the merits, and takes the chances of a trial, he is not in a position to say, if the result is favorable to him, that the court has jurisdiction to render a judgment in his favor, but, if it results unfavorably, the court has no jurisdiction to render judgment against him. Inasmuch as parties can confer jurisdiction upon the court by a voluntary appearance, (section 6823, How.St.,) there appears to be no good reason why a defendant may not confer such jurisdiction after an irregular or void service of process upon him by a voluntary appearance in the cause. If he does so before objections are taken, they come too late; and, if after they are taken, he waives them by submitting to the jurisdiction, and pleading to the merits. He cannot rely upon both, because that would allow him to occupy inconsistent positions, wherein he could claim that the proceedings were valid or void, as the result of the trial upon the merits affected his interests.

The contrary view is taken by the court of last resort in the state of New York. The cases cited from that state by defendant's counsel fully sustain his position, as well as those referred to in the opinion of Mr. Justice BEARDSLEY in 4 Denio, at page 94. He says: "When the question of regularity is made, at the proper time, and improperly overruled, the party is never concluded by pleading to the action. He does what he can to arrest the irregular proceeding, but, being defeated in this by the erroneous decision of the justice, the party cannot be deemed to have waived anything by subsequently pleading to the declaration, and making the best defense in his power."

It seems, however, that the principle in that state is confined to cases where the objection is made to process to bring the party into court; for it is held that other objections improperly overruled, are sometimes waived by afterwards going on with the suit. The force of the decisions in that state has not been recognized in ours, to the extent to which they seem to go there. But the decisions themselves do not seem to me to rest upon satisfactory reasons. It is the policy of the law that cases between litigants should be tried upon their merits, and that all technicalities and omissions which do not affect the substantial rights of the parties should be disregarded. This is especially so before justices of the peace. These tribunals are comparatively inexpensive, and jurisdiction is given to that extent that the greater part of the ordinary causes of litigation may be determined before them. It seems to me that it would be encouraging litigation, and the multiplication of costs, to hold that a defendant may take objections which, if good, fully protect his rights; and, instead of standing upon them when ruled against him, may submit himself to the jurisdiction of the court, defend the action upon its merits, and, if defeated, be...