Millar v. Babcock
| Decision Date | 14 July 1874 |
| Citation | 29 Mich. 526 |
| Court | Michigan Supreme Court |
| Parties | Orville J. Millar v. Marshall D. Babcock |
Submitted on Briefs May 13, 1874
Error to Kalamazoo Circuit.
Judgment reversed, with costs, and a new trial ordered.
May & Buck, for plaintiff in error.
Severens & Boudeman, for defendant in error.
When this case was here before it was decided that on the record as it then stood, the plaintiff was entitled to recover whether the attachment proceedings under which the defendant claimed were valid or not. He had shown a complete chain of title to himself, which was in no manner successfully assailed, and which put the title out of the defendant in the attachment when those proceedings were taken, and left nothing for them to operate upon.--Millar v. Babcock, 25 Mich. 137. On another trial an attempt has been made to show that the previous deed given by the attachment debtor was void; and to open the way to this, the attachment proceedings were again put in evidence, and their validity is in issue.
The affidavit for the attachment appears to have been in substantial compliance with the statute, and was sufficient. And we discover no error in the admission of secondary evidence to prove the writ of attachment, which was gone from the files. But we think the court lost jurisdiction of the case when the plaintiff failed to publish notice of the proceedings within thirty days after the return day of the writ, as required by the statute.--R. S., 1838, p. 508, § 6. This publication is permitted by the statute as a substitute for personal service.--Thompson v. Thomas, 11 Mich. 274; but the lien which is obtained is special and extraordinary, and the remedy is given to enforce it if the provisions of the statute are observed in the steps taken, but is lost when these are departed from.--Buckley v. Lowry, 2 Mich. 418; Roelofson v. Hatch, 3 Mich. 277. There was no warrant for publication of notice after the thirty days had expired. The attachment lien acquired by service of the writ on property is preserved for that time awaiting the notice, but if this next step in the proceedings fails to be taken within the time, the lien is not retained indefinitely awaiting the possible action of the plaintiff afterwards. His subsequent notice is ineffectual, because the statute makes no provision for it.
The attachment proceedings being ineffectual, it is immaterial to this controversy whether...
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