Dunlap v. Toledo, A.A. & G.T. Ry. Co.

• Decision Date: 15 June 1881
• Citation: 46 Mich. 190,9 N.W. 249
• Parties: DUNLAP v. TOL., A.A. & G. TRUNK RY. CO.
• Court: Michigan Supreme Court

9 N.W. 249

46 Mich. 190

DUNLAP v. TOL., A.A. & G. TRUNK RY. CO.

Supreme Court of Michigan

June 15, 1881

Jurisdiction to appoint commissioners of appraisal in proceedings to condemn land cannot be conferred by notice served only on a person who is in no way connected with the owner of the premises and has only gone on them to receive service by collusion with those interested in the condemnation. Certiorari will lie to review proceedings to condemn land when void for want of jurisdiction; though it should not be favored where any other remedy is adequate. A writ of certiorari in cases involving interference with important works ought not to be allowed unless applied for as soon as practicable, and if granted after the expiration of the 20 days allowed for an appeal in proceedings to condemn land will not be sustained unless the delay in suing it out is satisfactorily explained.

Certiorari to Oakland circuit court.

E.J. Bissell and F.A. Baker, for plaintiff in certiorari.

Henry C. Waldron, for defendant in certiorari.

CAMPBELL, J.

In this case, which is a proceeding to condemn lands for a railroad, the original notice was served on a person who was in no way connected with Dunlap, and who had gone on to his premises for the purpose of having service made on him so as to bind Dunlap. The service was clearly illegal and known to be so by the representations of the railroad who procured his action, and there was no jurisdiction to appoint commissioners of appraisal. The proceedings should not have been confirmed.

It is objected that certiorari is an improper remedy, and that resort should have been had to an appeal. While it is true that certiorari should not be favored where any other remedy is adequate, yet it will undoubtedly lie for want of jurisdiction. But in cases involving the interference with important works, the writ ought not to be allowed unless applied for as soon as practicable. The time for appeal is limited to 20 days, and we shall not feel disposed to sustain a certiorari granted after a longer time, unless under circumstances clearly explaining and accounting for the delay. In the present case it was granted at once and no want of diligence existed.

The proceedings must be quashed as to plaintiff in certiorari with costs of this court and of the proceedings below.

(The other justices concurred.)