Evans v. Calman

• Decision Date: 01 July 1892
• Citation: 92 Mich. 427,52 N.W. 787
• Court: Michigan Supreme Court
• Parties: EVANS v. CALMAN et al.

52 N.W. 787

92 Mich. 427

EVANS v. CALMAN et al.

Supreme Court of Michigan

July 1, 1892

Appeal from circuit court, Mecosta county, in chancery; JOHN H. PALMER, Judge.

Bill by Philinda S. Evans against Emil Calman and others to set aside a levy of execution. Defendants had decree, and plaintiff appeals. Affirmed.

Dumon & Cogger, for appellant.

C. H. Thrall, for appellees.

GRANT, J, (after stating the facts.)

1. The mistake of date in the return of the officer corrects itself. The summons was issued March 2, 1888, returnable March 10, 1888. The defendant was not, therefore, misled by the officer's return. The date mentioned in the return was an impossible one, and no possible doubt could exist but that the date should be 1888, instead of 1886. Johnson v. Shepard, 35 Mich. 121. The justice's docket clearly shows that the date of the appearance of plaintiff's attorney and the date of rendering judgment was March 10th, under which date all these statements are made.

2. The levy was not made after the return day of the execution, as appears by the record. The execution was issued July 20, 1889; levy was made July 23d of the same year; notice of sale was given June 17, 1890, which notice contained the identical description in the notice of levy. Another levy appears to have been made January 6, 1890, but the description of the land is not the same as in the first notice. Had the sheriff proceeded under the second levy, the proceedings would be void.

3. The defendant was served with the summons, and having failed to make her defense then, as was her duty, she cannot now be heard in a court of equity. Wilson v. Coolidge, 42 Mich. 112, 3 N.W. 285.

4. The evidence does not sustain complainant's claim of a homestead. She and her husband were living elsewhere. There were two houses upon the property, both of which were rented. The property had been for some time in a condition for occupancy. She cannot now change its character by saying that she intended at some future time to occupy it as a home. Decree affirmed, with costs. The other justices concurred.