Durfee v. Simonson

• Decision Date: 18 January 1883
• Citation: 14 N.W. 706,50 Mich. 80
• Court: Michigan Supreme Court
• Parties: DURFEE v. SIMONSON.

14 N.W. 706

50 Mich. 80

DURFEE v. SIMONSON.

Supreme Court of Michigan

January 18, 1883

Sections 5264 and 5265 of the Compiled Laws, providing that against non-resident defendants the summons shall be returnable not less than two nor more than four days from its issue, must be construed as requiring two full secular days between the issue and return of the writ, and a justice of the peace acquires no jurisdiction to render a judgment when the writ issues on Friday, and is made returnable the following Monday.

Error to Shiawassee.

McBride & Miner, for plaintiff and appellant.

M.V.B Wixom, for defendant.

CAMPBELL J.

In this case a certiorari was issued out from the circuit court for the county of Shiawassee to review a justice's judgment as not founded on proper jurisdictional grounds. Durfee was sued as a non-resident of Shiawassee county by a short summons issued on Friday, December 2, 1881, and served on that day, and returnable the ensuing Monday. The statute provides, that against non-resident defendants the summons shall be returnable not less than two nor more than four days from its issue. Comp.Laws, �� 5264, 5265. On Monday defendant appeared specially to object to the want of jurisdiction, claiming that Sunday could not be counted as one of the two intermediate days. This being overruled no further appearance was entered, and the plaintiff proved his case ex parte. The circuit court affirmed the judgment.

It is claimed by counsel for defendant that it has been understood since the decision in Drake v. Anderson, 2 Mich 403, that Sundays were to be excluded in statutory periods less than one week.

The question was not involved in that case, but there is much force in the suggestions there made. But in Harrison v Sager, 27 Mich. 476, it was held that no such universal rule could be applied, and that where there were four days on any of which a justice of the peace could have rendered a judgment if he chose to do so, the fact that Sunday was the last day would not maintain a judgment rendered on Monday. The question therefore still remains whether in this particular there is legal reason for holding that Sunday should not be included as one of the two days which were to intervene between the issue and return of a short summons. While the purpose of the statute now involved in the discussion is rather to enable a debtor to have a speedy trial than to enable a creditor to get an...