Woolkins v. Haid

• Decision Date: 18 October 1882
• Citation: 13 N.W. 598,49 Mich. 299
• Court: Michigan Supreme Court
• Parties: WOOLKINS v. HAID.

13 N.W. 598

49 Mich. 299

WOOLKINS v. HAID.

Supreme Court of Michigan

October 18, 1882

Judgment by default in a suit by attachment in which there has been no actual service or appearance, cannot be taken until the plaintiff has strictly complied with all precedent conditions imposed by statute. So held where declaration was filed before the expiration of the six weeks during which notice to appear must be published and before the filing of the affidavit of publication, and where, furthermore, the rule for default was entered before the expiration of 30 days from the filing of such affidavit, although final judgment was not rendered until a sufficient time had passed.

Error to Berrien.

Roscoe D. Dix, for plaintiff.

Geo. L Clapp, for defendant and appellant.

GRAVES, C.J.

December 22, 1880, the plaintiff proceeded against the defendant by attachment from the circuit court under chapter 114 of the Revised Statutes of 1846; 2 Comp.Laws 1803. ^[*] The writ was made returnable on the fourth of January, 1881, and was levied on certain lands. The sheriff returned that he was not able to find the defendant and no service on the person was effected. The defendant not appearing the plaintiff caused a notice to be published from the twenty-ninth of January to the twelfth of March and on the last-named day filed his declaration. March 16, 1881, an affidavit of the publication of the notice was filed, and at a later time the plaintiff entered a rule which is not dated purporting to default the defendant. April 1881, a rule was entered to make such default absolute and for judgment interlocutory, It was recited in this rule that more than one day in term had elapsed since the entry of the former one. The record consequently explains itself so far as to show that the default on which the subsequent proceedings were based was taken prior to the fifteenth of April and hence before the arrival of legal time. April 20th the clerk assessed the damages and on the same day judgment final was entered.

The plaintiff admits that the rule for default was premature but he contends that as sufficient time had elapsed when final judgment was entered the mistake was a harmless irregularity and was cured by the statute. Rev.St.1846, c. 104.

In suits by attachment where no actual service has been obtained nor any real appearance made a scrupulous adherence to the settled course of practice has always been required, and the plaintiff has uniformly been held to a strict compliance with all conditions precedent to a judgment by default. Thompson v. Thomas, 11 Mich. 274; Wells v Walsh, 25 Mich. 344; Millar v. Babcock, 29 Mich. 526; King v. Harrington, 14 Mich. 532. The default here entered was wholly unauthorized and has no force. The proceedings derive no support from it. But as there was no actual service and no appearance in fact a valid default was a needful preliminary to the final judgment. It could not be dispensed with. Unless the defendant was ascertained to be in default he could not be deemed to have admitted the validity of the demand, and the right to proceed as though he had, could not be assumed.

The judgment must be reversed with costs.

(The other justices concurred.)

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Notes:

^[*] (6414) Sec. 18. If it appear by the return of such writ that any property has been attached thereon, and that neither of the defendants could be found the plaintiff shall, within 30...