McLaughlin v. Jackson Circuit Judge , 1907 Mich. LEXIS 921 ( 1907 )

Blair, J.

Relator began suit in the Jackson circuit court by attachment. The writ was returnable on September 11, 1906, and was levied upon growing corn, which was afterwards out and husked by the sheriff, and this application is for the purpose of requiring the circuit judge to make an order for the sale of the stalks as perishable property. The circuit judge declined to make such an order, upon the ground that he had no jurisdiction of the proceedings. The correctness of this ruling depends upon the following state of facts: No personal service was made upon the defendant in the writ, who was a nonresident of the State, and there was no general appearance on his behalf. The sheriff’s return was filed in the cause October 9, 1906. The first publication of the notice, required by section 10572, 3 Comp. Laws, was made on October 15, 1906. Relator filed affidavits in support of his application, tending to show that the deputy sheriff was hostile to plaintiff’s suit, friendly to defendant, and did what he could to embarrass plaintiff’s attorneys; that plaintiff’s attorneys repeatedly requested thedéputy sheriff to make his return, but were unable to procure such return till October 9th; that, anticipating such return, plaintiff’s attorneys prepared the notice of publication, and took it to a newspaper office for publication on October 8th with instructions to publish it at once, but the publisher neglected to publish the notice till October 15th. After the circuit judge had denied the application, attorneys for the defendant in the attachment suit, who had appeared specially, filed affidavits of the deputy sheriff, the publisher, and themselves, tending to show that the default was wholly that of attorneys for plaintiff.

We think the judge committed no error in denying the application. Plaintiffs were applying for an order to sell perishable property, based upon a record which upon its face showed that the court had no jurisdiction. The statute requires that the first publication of the notice shall be within 30 days of the return day of the writ, otherwise the proceedings must fail. Millar v. Babcock, 29 Mich. 526; Watson v. Toms, 42 Mich. 561.

If the sheriff neglects or refuses to make his return, application should be made to the court for an order requiring such return, and, if necessary, extending the time for the return of the writ for the purposes of constructive service. If the notice was delivered to the publisher in time and the failure to publish the same within the 30 days was due to the negligence or other fault of the publisher, application should have been made, upon discoyery of such fact, for an extension of the time for return to bring the first publication within the 30 days.

The writ of mandamus is denied.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.