Montgomery v. Merrill

• Decision Date: 30 April 1872
• Citation: 25 Mich. 73
• Court: Michigan Supreme Court
• Parties: Jane A. Merrill v. Jehiel H. Montgomery

25 Mich. 73

Jane A. Merrill v. Jehiel H. Montgomery

Supreme Court of Michigan

April 30, 1872

Heard April 16, 1872; April 17, 1872.

Error to Calhoun Circuit.

Judgment reversed, with costs, and a new trial granted.

Brown & Patterson and C. I. Walker, for plaintiff in error.

D Darwin Hughes and Samuel T. Douglass, for defendant in error.

Campbell J. Christiancy, Ch. J., and Cooley, J., concurred. Graves J., did not sit in this case.

OPINION

Campbell, J.

Ejectment is brought upon an execution title under a judgment in favor of Montgomery against the Bank of Calhoun county, and the most important question involved, is whether the judgment was valid.

The declaration against the bank was filed March 16, 1858. On the same day an order for substituted service was made upon a showing that ordinary service could not be made. It is claimed that this order was not valid.

The first objection is that it was not made by the court, but by the judge. It appears in the form of a motion in the special motion book, with a memorandum as follows: "Granted. B. F. Graves, Cir. Judge." Although an entry on the journal would be more regular, yet the practice of deciding motions in this way is quite common at circuit, and is never, so far as we know, resorted to except when the court is sitting. We think it must be assumed to be the action of the court.

As the charter of the bank was a public law and expired in 1857, the regular service upon it, during the three years allowed for suits, must be, under Compiled Laws, section 4,836, upon either of the persons who may have been "the last presiding officers, president, cashier, secretary, or treasures," as in the case of active corporations it should be on the existing officers of those designations. Inasmuch as in all cases the regular service is on the same class of officers, we think the provisions for substituted service, where such officers can not be found, must be held to apply as well in the one case as in the other, and to reach corporations acting and not acting, The sections harmonize in this way, and no intention appears to exempt one corporation more than another from service of process. Section 4,835 provides that, "if there be no such officers, or none can be found, such service may be made on such other officers, or member of such corporation, or in such other manner as the court in which the suit is brought may direct." We think the inability to find the actual and the last officers in the two several cases authorizes the same proceedings.

Where service is made in any but the ordinary ways, the rule has always been that its regularity must appear, and unless the facts on which it appears to have been allowed, are such as would make it come within the statutory conditions, it can not be maintained. All extraordinary means of getting jurisdiction must be conformed to the legal authority. Webster v. Reid, 11 How. R., 437; Platt v. Stewart, 10 Mich. 260, and cases cited. In this case the Jurisdiction depends on certain affidavits.

The statutory condition is, "if there be no such officers, or none can be found."

The affidavit shows that, "there is no officer of said corporation residing in this county," except two persons shown to have been directors. This part of the affidavit is positive in form, but it does not say no officer is to be found, either in or out of the county. The charter requires the president and directors to reside, not in the county, but in the State; and by leaving the State to reside, their offices seem to be treated as ipso facto vacated. Charter, § 5 L. 1836, p. 218. Nothing is said concerning the residence of other officers. As it is quite common for corporation officers to reside in a different county from that where the office is kept, and yet to be found there, non-residence does not satisfy the statute.

There is a very serious inquiry, what showing will justify an inference that an officer is not to be found. The filing of the declaration, and showing cause, and granting the order in this case, were all contemporaneous. The...