Brownell v. Circuit Judge ( 1892 )

To- vacate a judgment entry.

Granted January 20, 1892, witb costs.

On June 18, 1890, a judgment was recovered in tbe Gass circuit against relator and one E., composing tbe firm of E. & Go. Neither of tbe defendants appeared, and no service was bad upon E. Service was made upon relator in Allegan County.

Respondent contended (1) that it is not necessary that the records and proceedings affirmatively show jurisdiction after judgment, Ward vs. Cousins, 3 M., 258. (2) That the claim is n,ot seasonably made, Webb vs. Mann, 3 M., 139; Thompson vs. M. B. A., 52 M., 524; Clayburn vs. Reynolds, 31 S. C., 273. (3) That the authority of the higher tribunals is presumed until the contrary appears, Beck vs. Judson, 8 N. Y., 260; Foot vs. Stevens, 17 Wend., 483; Hart vs. Sizer, 21 Wend., 40; Cameron vs. McRoberts, 3 Wheat. (U. S.), 591. (4) That the judgment has ceased to be operative, and ,the Circuit Court has no further jurisdiction over the case.

Relator contended that the Statute, Sec. 7316, required service upon the resident defendant before service could be had upon the joint defendant in another county. Citing, Jacobson vs. Circuit Judge, 76 M., 234 (14); Dennison vs. Smith, 33 M., 158; Clark vs. Lichtenberg, 33 M., 307; Ellis vs. Fletcher, 40 M., 321; Johnson vs. Delbridge, 35 M., 436; Platt vs. Stuart, 10 M., 261; Gould vs. Jacobson, 58 M., 288; Wells vs. Walsh, 25 M., 343; Ellis vs. Fletcher, 40 M., 321.

That mandamus is the proper remedy, Barrett vs. Circuit Judge, 18 M., 247 (739); and that lapse of time would not affect the right, Feihart vs. Wilson, 37 N. W., 585.