Letherby v. Shaver , 73 Mich. 500 ( 1889 )

Sherwood, C. J.

The petitioner is a resident of St, Johns, in the county of Clinton. He had a suit pending in the circuit court for the county of Montcalm, in which he was plaintiff, and said suit was tried on September 11, 1888. It appears from the record that Shaver was obliged to go to Stanton, the county seat, on September 10, to attend said court for the trial of his suit, as a. party and witness therein, and for no other purpose, and that he was detained at the court on said business until September 12, and no other; that said cause was tried on September 11 as aforesaid; that on said day, while he' was in attendance upon the court, the summons in this-cause was issued by a justice of the peace, and that no other summons or other process ivas served upon him.

It further appears that at the time the summons was returnable the defendant appeared specially and by his attorney, and moved the court to set aside the service and dismiss the case, for the reason that the defendant was a non-resident of the county of Montcalm, and was at the time the summons was served upon him .attending the trial of the cause in the circuit as a party and witness therein, and he filed an affidavit setting forth the foregoing facts, which the record shows were undisputed.

The justice, after taking time to consider of the matter, ■overruled the motion; and, the defendant not thereafter appearing, the justice proceeded with the case, and rendered judgment for the plaintiff. The justice held the affidavit insufficient upon which to base the relief sought by the defendant.

The justice erred in his ruling. The motion of the ■defendant to set aside the service and dismiss the suit should have been granted. See Mitchell v. Circuit Judge, 53 Mich. 541 (19 N. W. Rep. 176), and cases therein cited.

And the judgment he rendered must now be reversed, and the case dismissed, with costs.

Morse, Campbell, and -Long, JJ., concurred. Champlin, J., did not sit.