Wright v. Russell , 1869 Mich. LEXIS 67 ( 1869 )

Cooley Ch. J.

The plaintiff prosecuted the defendants before a Justice of the Peace, commencing his suit by attachment. The process was not personally served, and on the return day the defendants appeared specially by attorney for the purpose of moving the Court to dismiss the writ for want of a proper affidavit, and also because of defective service and return.

It is not distinctly stated in the record that this motion was made, or if it was, what decision was made upon it. It appears, however, that the Justice continued the case for ten days, and on the adjourned day the defendants not appearing, he rendered judgment against them for an amount considerably larger than the plaintiff had claimed in his affidayit. The defendants thereupon appealed specially, assigning as grounds of error in their affidavit “that said defendants did not appear in said cause, and that there was no personal service of process therein on either of the said defendants, and that said suit was commenced by attachment, and said judgment was rendered before the expiration of thirty days from the return day of such attachment, and that there was no return showing a legal service.” Upon these objections the Circuit Court reversed the judgment.

The plaintiff in error insists that the affidavit made out no case for a special appeal, and that consequently the Circuit Court had no power to reverse the judgment, but should have treated it as a general appeal, and allowed the plaintiff to go to a trial on the merits. The particular objection is, that it does not appear, either by the affidavit for the appeal, or by the return thereto, that any objection was made by the defendant before the Justice or any decision by him, and consequently there was nothing to bring up by special appeal under the statute applicable to that subject.

The statute — Comp. L., § 8,886 — provides that “incase there shall be any objection to the process, pleadings or other proceedings, and the decision of the Justice thereon, which would not be allowed to be made on the trial of the appeal, the same may be set forth specifically in the affidavit.”

The plaintiff construes this statute to permit those objections only to be brought up in this mode which were actually made before the Justice and passed upon by him. If this were the true construction, we should still think the affidavit sufficient in the present case. The record shows that defendants appeared before the Justice for the sole purpose of making certain objections to the jurisdiction. It does not state that the motion was made, but this, we think, is fairly inferable. "We must view the entries of proceedings of Justices of the Peace with more liberality than those of Courts of Eecord, and cannot reasonably demand that accurate statement of the several steps in a cause, which is supposed to be found in the journals of the higher courts.

The statement that the defendants appeared for the purpose of making a particular motion, is idle unless we are to understand that that motion was actually made by them. We think that is what was meant by the Justice by his entry. And we think also that when he disregarded the motion and proceeded to a hearing of the cause, that action was equivalent to a decision that the motion was not well founded.

But we do not understand the statute as confining the party taking a special appeal to the objections actually made before the Justice. The statute says, “if there shall be any objection,” etc., “which would not be allowed to be made on the trial of the appeal,” it may be taken in this mode. We understand this to mean only that the party may set forth in his affidavit any such objection which may exist; and this whether he made it before the Justice or not. If the objection is one which goes to the jurisdiction, a defendant is not obliged to appear before the Justice for the purpose of making it, and it is as competent for him to bring it before the Circuit Court by special appeal, as by certiorari. We think such a case is clearly within both the words of the statute and its intention.

Assuming the appeal to have been properly taken as a special appeal, the question still remains, whether the Circuit Court was correct in its decision upon the question of jurisdiction. The particular objection to the action of the Justice was, that he rendered judgment in an attachment case, where personal service was not had, before the expiration of thirty days from the return day of the writ.

The statute — Comp. L. § 3,685 — provides that “if the attachment shall not be personally served upon any of the defendants, and none of the defendants shall appear on the return day thereof, the Justice shall continue the cause for not less than thirty and not exceeding ninety days, and in such case no hearing shall be had or judgment rendered thereon, until the expiration of that time, unless the defendant shall sooner appear and request a trial; in which case the Justice shall appoint a day for the trial of such suit, and cause notice thereof to be given to the plaintiff.”

As there was no personal service, and judgment was actually rendered ten days from the return day, there can be no ground upon which the judgment can be sustained, unless we hold the appearance of the defendants by attorney, for the purpose of objecting to the jurisdiction, as such an appearance as this statute contemplates. But it is very certain, we think, that we cannot do this. The statute means ■ evidently a general appearance for the purposes of a trial, — such an one as would waive a want of proper service of process — and not a special appearance .to object to the jurisdiction to try. We think the ruling of the Circuit Court was correct in this particular, and that the judgment must be affirmed with costs.

The other Justices concurred.