Howell v. Shepard

• Decision Date: 14 June 1882
• Citation: 12 N.W. 661,48 Mich. 472
• Court: Michigan Supreme Court
• Parties: HOWELL v. SHEPARD.

12 N.W. 661

48 Mich. 472

HOWELL v. SHEPARD.

Supreme Court of Michigan

June 14, 1882

A suit is not begun for the purposes of the statute of limitations by merely filling out a summons and leaving it in the justice's office until the return-day, or by retaining it in the plaintiff's custody; it must be issued with the intent that, if practicable, it shall be served.

A justice's summons is not issued if merely delivered to the plaintiff and kept in his hands.

The date of a writ is prima facie evidence of the time of its actual issue, and defendant has the burden of proving that it was not then issued.

Comp.Laws � 5263, provides that a plaintiff who has taken out an alias summons that has been returned not personally served "may, in further continuation of the suit, have an attachment against the defendant" on which property may be taken. Held, that this is an alternative remedy, and that instead of resorting to it the plaintiff may take out successive writs of summons for the purpose of keeping a suit alive under the statute of limitations.

Certiorari to a justice is a remedy that will not be encouraged where the alleged errors are such as might be obviated on a trial de novo in the circuit, and no intendments will be made in favor of errors assigned on it.

The erroneous admission of a deposition in a trial before a justice is ground for appeal rather than remedy by certiorari.

Error to Kent.

Frank G. Holmes, for plaintiff in error.

Charles C. Howell, for defendant in error.

COOLEY J.

This litigation originated in justice court, upon a small claim which became due July 25, 1873. Summons was taken out July 24, 1879, but was returned not found. Successive writs were then taken out, until September 13, 1879, when personal service was obtained, and the defendant appeared and pleaded to the action. The plea was the general issue, with notice that defendant would rely upon the statute of limitations. This notice presents the principal question in the case. The justice gave judgment for the plaintiff, and on certiorari the circuit court affirmed it.

The question divides itself into two: First, whether the suit is to be deemed commenced at the date of the first summons; and second, whether it was kept alive by the successive writs afterwards.

The mere filling out of a summons, which is then left in the justice's office until the return-day, or which is taken by the plaintiff and retained in his own custody, is not the commencement of suit. The writ must not only be made out but it must be issued with the intent that, if practicable, it shall be served. Hancock v. Ritchie, 11 Ind. 48. It is not issued if it is...