Manhard v. Schott

• Decision Date: 02 October 1877
• Citation: 37 Mich. 234
• Court: Michigan Supreme Court
• Parties: Mirza R. Manhard, assignee v. Samuel Schott et al

37 Mich. 234

Mirza R. Manhard, assignee v. Samuel Schott et al

Supreme Court of Michigan

October 2, 1877

Argued June 20, 1877

Error to Marquette. (Williams J.)

Attachment proceedings. Plaintiff brings error. Reversed.

Judgment of the circuit court reversed with costs, and the cause remanded for trial.

Ball & Owen for plaintiff in error.

M. H Crocker for defendants in error.

OPINION

Campbell J.

In this case an attachment suit was brought before a justice in Marquette county, by plaintiff against defendants, but no property was found, and no personal service was had on any of the defendants; but substituted service was made on one of them, Nathan Schott, by leaving a copy of the writ at his last place of residence. The writ was returnable on the 18th of November, 1875, and the return was made on the 12th. The case was adjourned until December 20, at which time plaintiff declared. All the defendants appeared specially by attorney and moved to quash the proceedings for various defects going, as was claimed, to the jurisdiction. This motion being denied, the defendants pleaded the general issue, with certain special notices in bar, and a trial was had on the merits, resulting in a verdict for plaintiff. Affidavit was then made for an appeal, with special allegations going in part to the matters covered by the motion to quash, and in part to rulings on the trial upon questions of evidence. The circuit court reversed the judgment, on the special matters, without trial on the merits.

If there had been no appearance or plea before the justice, the jurisdictional questions would be important and might be decisive. Two of the defendants were not served at all, and as to the third, a question may arise as to whether there was such a "personal service" as authorizes a justice to proceed in attachment where no property has been seized. How. Stat. § 6850.

But, instead of resting on the defectiveness of the 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. Hart v. Blake 31 Mich. 278; Crane v. Hardy 1 Mich. 56; Pardee v. Smith 27 Mich. 33 at 33-38.

The questions which arose on the trial cannot be made the ground of a special appeal, for reversing the judgment without a trial at the circuit. Albert v. Sutton 28 Mich. 2; Dalton v. Laudahn 30 Mich. 349; McGraw v. Sturgeon 29 Mich. 426.

The case was one which should have been tried on the issue of fact, and the court erred in reversing the judgment of the justice without a trial.

The judgment of the circuit court must be reversed with costs, and the cause remanded for trial.

The other Justices concurred.

A justice's attachment cannot be returned "not found" until the last day for serving it personally has expired (Withington v. Southworth 26 Mich. 381; Brown v. Williams 39 Mich. 755) and an officer may not content himself with an inferior mode of service until he has with reasonable diligence exhausted all superior methods Town v. Tabor 34 Mich. 262; one who has attached property and served copies of the writ and inventory on the persons in possession may afterwards serve the defendant himself, if found within the county within six days before return day: Nicolls v. Lawrence 30 Mich. 395; but where return has been made without personal service before return day no farther return can be made without leave of court: Myers v. Prosser 40 Mich. 644; and a justice has no jurisdiction to issue a second summons and follow it with an attachment unless the statutory requirements as to service have been complied with,--e. g. in making diligent effort to obtain personal service and in taking the full time allowed therefor before returning defendant "not found": Isabelle v. Iron Cliffs Co. 57 Mich. 120, 23 N.W. 613; substituted service of a writ of attachment by leaving a copy with defendant's wife at his last place of residence will not give a justice jurisdiction over his person; and a personal judgment on such service is void: Rolfe v. Dudley 58 Mich. 208, 24 N.W. 657; and where the officer's power is limited to a municipal jurisdiction, his return...