Spier v. M'Queen , 1 Mich. 252 ( 1849 )

By the court,

Whipple, Ch. J.

The solution of the question raised by the demurrer must depend upon the construction of sec. 11, chap. 2, tit. 6, part 3 of the revision of 1838. That section provides, “ that if in any action, duly commenced within the time limited in this chapter and allowed therefor, the writ shall fail of a sufficient service or return, by any unavoidable accident, or by any neglect or default of the officer to whom it is committed; or if the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form; or, if after a verdict for .the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on writ of error, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or the determination of the original suit; or, after the reversal of the judgment therein.”

I am unable to perceive how the plaintiff can shelter himself under the provisions of this section. The authority of Shaw to appear as attorney was requested by the defendant; and the statute, upon such request being made, required, in express terms, that his authority should be proved, either by his own or other competent testimony. This proof not being exhibited, the action was defeated for want of ajjpearance at the return day of the process.

The failure of any action, for such a cause, does not fall within the saving clauses of the 11th section. The demand made by the defendant was not mere “ matter of form” It was a right conferred by statute; and if the plaintiff failed to'furnish liis agent with the necessary authority, or if the agent, having the authority, neglected to make the necessary proof, there was, in a legal sense, no appearance, and judgment of nonsuit must have been the consequence.

We should have been glad to have relieved the plaintiff from the difficulties into which he was drawn by his own inadvertence or by the want of skill on the part of his agent; but it would be extending the statute to a case not within its terms, if we allowed the replication to stand as a sufficient answer to the plea.

Let it be certified to the circuit court of the county of Eaton, as the opinion of this court, that the demurrer to the replication should be .sustained.

Certified accordingly,