Michigan Mut. Fire Ins. Co. of Lansing v. Donovan

• Decision Date: 06 April 1897
• Citation: 112 Mich. 270,70 N.W. 582
• Court: Michigan Supreme Court
• Parties: MICHIGAN MUT. FIRE INS. CO. OF LANSING v. DONOVAN, CIRCUIT JUDGE.

70 N.W. 582

112 Mich. 270

MICHIGAN MUT. FIRE INS. CO. OF LANSING v. DONOVAN, CIRCUIT JUDGE.

Supreme Court of Michigan

April 6, 1897

Original application by the Michigan Mutual Fire Insurance Company of Lansing for a peremptory writ of mandamus, directed to Joseph W. Donovan, Wayne circuit judge. Denied.

Harlow P. Davock, for relator.

George Gartner, for respondent.

MOORE J.

The office of the relator is at Lansing, Mich. The Improved Match Company commenced suit against the relator, by summons, in the circuit court in Wayne county. No service was had of this summons, and an alias summons was taken out, and an order made, based upon an affidavit filed in the cause, directing the service to be made upon George E. Moody, and that a copy be mailed at Detroit, Mich., to the relator, at Lansing Mich. The relator appeared, and moved to quash the summons because the service was not properly made, and was not made upon the defendant, nor upon an officer or agent of the company. The motion was overruled, and this is an application for a writ of mandamus to compel the circuit judge to vacate his order overruling the motion to quash, and requiring him to dismiss the case for want of proper service. The circuit judge returns, among other things, that more than year had elapsed, when the motion to quash was made, since the fire occurred for which suit was brought; that, by the terms of the policy, the liability of the company expired within one year from the fire, unless the suit was brought; that the plaintiff had been diligent in seeking to get service; and, that if the service was not adequate, a plura alias summons should issue, instead of dismissing the suit, so as to prevent the suit abating; and that, in the exercise of his discretion, he denied the motion to quash.

In view of the growing frequency of applications for mandamus, asking this court to review the action of subordinate courts resulting in overloading this court with work, which does not finally dispose of the case, it becomes important to decide whether, in a situation like the one at bar, the writ should issue. We are aware that the decisions of this court have not been uniform, and for that reason it is difficult to lay down a rigid rule which shall be followed in all cases. As the writ is a discretionary one, perhaps it is not desirable that an inflexible rule should be established. We think, however, a review of the decisions will...