Sheridan v. Cameron

• Decision Date: 28 April 1887
• Citation: 32 N.W. 894,65 Mich. 680
• Court: Michigan Supreme Court
• Parties: SHERIDAN v. CAMERON and another.

32 N.W. 894

65 Mich. 680

SHERIDAN v. CAMERON and another.

Supreme Court of Michigan

April 28, 1887

Appeal from circuit court, Manistee county. In chancery.

A.V. McAlvay and A.J. Dovel, for complainant.

Ramsdell & Benedict and Dunlap & McPherson, for defendants and appellants.

CAMPBELL C.J.

Complainant began proceedings to enforce a mechanic's lien, which are attached on the ground that they were prosecuted too late and irregularly. An objection made to the affidavit of lien turned out to have been mistaken, and need not be mentioned. The affidavit was filed April 30, 1885. Within the statutory period of 60 days, upon June 20th, a petition in chancery was filed, which is claimed to be defective in not containing a prayer for process. A notice of lis pendens was filed after the 60 days expired, upon the tenth of July, 1885. Subpoena was issued in October, 1885. On the sixteenth of November 1885, Dunlap & McPherson, as solicitors, entered a general appearance in the case, and on the fourteenth of January 1886, filed an unsworn plea, setting up in defense the delay in the issue of subpoena, and the defect in prayer for process, and the consequent failure to begin legally court proceedings. This was replied to, and the case heard without further proofs, and decree rendered for complainant. On the ninth of December, 1885, Ramsdell & Benedict, by special appearance as solicitors, made a motion to quash the proceedings, which was not passed upon, as defendants had already appeared by other solicitors. No denial or issue was made on the merits, and the whole controversy turns on the seasonable prosecution of the proceedings.

There is no force in the objection concerning the prayer for process. The petition shows upon its face who the parties defendant are, and brings them within the statute. The chancery rule which requires the prayer for process to identify the parties would not make a bill fatally defective for the want of it if they are otherwise identified, and the statute does not require any particularity. It permits a petition as well as a bill, and is silent as to process. While a subpoena is perhaps the most appropriate notice, we are not prepared to say it is necessary. We think the filing of a bill or petition is the beginning of the suit, and that the service of process is only a step in the cause. If this were not so, a mechanic's lien could never be enforced against an absent defendant who...