People ex rel. Barrett v. Bacon

• Decision Date: 21 April 1869
• Citation: 18 Mich. 247
• Court: Michigan Supreme Court
• Parties: The People ex rel. Barrett v. Nathaniel Bacon, Circuit Judge

18 Mich. 247

The People ex rel. Barrett v. Nathaniel Bacon, Circuit Judge

Supreme Court of Michigan

April 21, 1869

Heard April 21, 1869 [Syllabus Material]

Mandamus to circuit judge of Branch county.

This was an application to compel the circuit judge to set aside a judgment rendered against Wallace W. Barrett, because of an illegal notice of trial.

The facts are stated in the opinion.

Motion for mandamus granted, with ten dollars costs.

Shipman & Loveridge, for plaintiff in error:

1. It is error to try a cause without it is first duly noticed for trial: 2 Comp. L., § 4347; Chamberlain v. O'Keef, 2 Mich. 357; Small v. Adrick, 5 Wend. 137; Knapp v. Mead, 2 Johns. Cas., 111; Jenks v. Payne, 15 Johns. 399; Turrill v. Walker, 4 Mich. 177; Bowen v. Clarke, 2 Wend. 249.

The statute is imperative and makes the notice a condition precedent to the trial, and it must affirmatively appear that this condition has been performed, before a trial can be had Strong v. Childs, 2 Mich. 107; Green's Prac., § 901; Smith v. Roberts, 1 How. Pr., 40; 1 G. and W., New Trials, 11-18; 2 Id. 136-142; 3 Id. 887; Joslin v. Coffin, 5 How. Miss., 539; Schilling v. Welman, 5 N. S. Leg. Obs., 20; Beekman v. Reed, 5 Cow. 23; Montgomery v. Henry, 10 Mich. 19; Douseman v. O'Malley, 1 Doug. 450; Fitch v. Kettle, 3 M. and G., 856; Moredon v. Wyer, 6 M. and G., 278.

And it seems this cannot be supplied by subsequent proof: Doolittle v. Ward, 5 Johns. 359.

It does not come within the statute of amendments.

2. Circuit court rule 10 is based upon § 3854 of Compiled Laws, and that section speaks only of the notice mentioned in the preceding section. But the preceding section, 3853, applies only to the first notice of trial after the appeal is taken. All subsequent notices come under the general statute, section 4347; so there was no authority for serving the notice of trial by posting in the clerk's office for the term when this cause was tried, as it was not the first term after the appeal was taken, but a subsequent one: McDermott v. Board of Police, 5 Ab. Prac., 422; Ruthbun v. Acker, 18 Barb. 393; 2 Comp. L., §§ 3398 and 3399.

3. But, reading the rules from 5 to 10 together, and giving full force to all, the order of service is: First, personally; second, by mail; and, third, by posting in the clerk's office. Service cannot be made by mail so long as the parties reside in the same place, nor by posting when information of residence can be had. The rules were made to carry out the object of the statute, viz.: to give the opposite party an actual notice of trial, not to provide a method of getting to trial without such notice being given, and thereby defeat the statute. The means most certain to get this notice to the party are to be resorted to first. Such notice is far more likely to reach the absent party where the notice of trial is sent by mail to his residence--"to be ascertained according to the best information and belief of the person making such service" (Rule 9)--than when posted in a distant clerk's office; hence, service by posting is not allowed when such information can be had. A strict compliance with this order of service is demanded by every consideration of justice. The law abhors an ex parte trial, and a construction the least likely to result in such iniquity should be insisted upon, and no departure from it allowed.

Looking only at Mr. Turner's affidavit, we find, that he had "satisfactory" information of where Gen. Barrett was. That is much better information than rule nine required him to have. Also that he knew where his family resided, for he says the general was not able to be with them "but now and then." (That is immaterial, for he resided where his family lived.) Not receiving replies to his two or three letters is nothing, for non constat that answers were required; but not being returned to the writer was good evidence of their receipt by Gen. Barrett. The general's whereabouts was a matter of common notoriety and public information, for it was in "the papers," Mr. Turner says. Also, it appears that he knew he could get the information he did not seem to want of Mr. Webb, and knew where the "best information" was to be had; but from all these sources, he negligently, if not willfully, turned aside. Service by mail upon a fraction of the information confessed by Mr. Turner (to say nothing of that which he avoided, or might have obtained by using the slightest diligence) would have been good, and hence he could not serve by posting: Collins v. Campfield, 9 How. Pr., 519; Jones v. Derby, 1 Ab. Pr., 458; Peck v. Cook, 41 Barb. 549; Wortman v. Wortman, 17 Ab. Pr., 66; Irving, s., etc., v. Hardman, 17 Ab. Pr., 67, n.

Nor does Mr. Turner anywhere state that he did not know where Gen. Barrett resided, or that he could not ascertain his place of residence.

4. Mr. Turner's affidavit only shows the notice was posted in the clerk's office. It does not show that it was posted in a "conspicuous place" therein, as rule ten requires. This is fatal.

The motion to vacate the judgment, being stated in the case made, is subject to review in this court: Sallee v. Ireland, 9 Mich. 154.

John W. Turner, for defendant in error.

OPINION

Campbell, J.:

John W. Turner having recovered a judgment before a justice against the relator, for $ 58.50 damages and $ 2.50 costs, the latter appealed it to the circuit court. In that court, after the lapse of several terms, Turner, without introducing any proof that he had noticed the cause for hearing, proceeded exparte, and obtained a judgment for $ 160 damages, with the costs. When Barrett, who was out of the state on military duty, heard of the fact, he applied to the court to set aside the judgment as irregular, for want of notice. Turner resisted the motion upon an affidavit, under which he attempted to show that he had given notice by posting it up in the clerk's office, on the claim that he could not learn the appellant's residence, and that the latter had not appeared by attorney. The court, upon this showing, refused to set aside the judgment, and the case was removed on exceptions and writ of error into this court. We dismissed the writ at the last term, as not applicable to such a case, and gave permission to the relator to apply for a mandamus upon the same showing.

Cause is now shown against the writ, by claiming that upon the showing made by Turner, the circuit judge rightly refused to open the judgment.

The statute (2 C. L., § 4347) requires all issues of fact to be noticed for trial. Rule 10 of the circuit court rules provides that "in cases of appeal, where the party upon whom notice is sought to be served has not appeared by attorney or agent, and his place of residence cannot be ascertained, notice may be served by posting it in some conspicuous place in the office of the county clerk."

While a judgment rendered without notice or appearance so far imports regularity as not to be ipso facto void, yet the statute would be a dead letter if such judgments were not held to be irregular and against right. Where any one attempts to bring on a cause ex parte, the court fails in its duty, and does a legal wrong to the absent party, unless it requires strict proof of regular notice, as a condition of going to a hearing. Proceedings without notice are contrary to the entire spirit of the law, and should not be countenanced.

When a party, against whom such a judgment has been rendered, in his absence, without proof of notice appearing on the files, moves at the first opportunity to vacate it, he is legally entitled to that relief unless it is then made to appear that legal notice was in fact given.

In the present case, an attempt was made to prove such notice....