26 Mich. 123 | Mich. | 1872
This was an action of .debt, brought by Mills against Allen, before a justice of the peace in Washtenaw county, upon a judgment in bis favor, against Allen, rendered by a-justice of the peace in Lenawee county.
On the trial this judgment was prayed (under objection),, by a transcript from the docket of the justice who renered it; and upon this proof the justice rendered a judgment against Allen, for the amount of the first judgment, interest, and costs.
The only questions in the case, arise upon the validity of the first judgment, rendered by the justice in Lenawee ■county, as shown by the transcript given in evidence on the trial.
By this transcript it appears that the original action was brought against the defendant and one Stephen Allen, the summons being served upon this defendant, the other, as appeared by the return, not being found; and that the declaration was upon a joint (not joint and several) promissory note, purporting to be signed by this defendant and ■one Stephen Allen, and that the judgment was rendered against the defendant, Theodore S. Allen alone, and not against both, as it should have been under the statute.— Comp. L., 1857, § 8781. This is one of the errors assigned. But though it was an error for which the judgment might have been reversed on certiorari, or perhaps on special appeal, it was not one which went to the jurisdiction of •the justice, and therefore not one for which the judgment could be collaterally attacked in the action founded upon it, while it remained unreversed.
But it further appeared from the transcript of the docket, that the cause was commenced by a summons issued on the 3d day of August, returnable on the 5th day of the same month (in other words a short summons); that the defendant did not appear, and the docket, as to the residenc.c of any of the parties, was silent. And, in this state of facts appearing from the docket, the plaintiff in error insists, that no fact appearing to authorize the issuing of a summons, returnable in less than six days, the justice must be held not to have acquired jurisdiction of the defendant, and that the judgment is therefore void.
Now, it is quite clear under these provisions, that if both plaintiff and defendant are residents of the county, the-long summons is authorized and the short summons is- not; and if either is a non-resident, then the short summons is authorized and'the long one is not; and the defendant, if' served in either case with the summons not authorized by the statute, would have the right to object to its validity in some way and at some time, at least in the cause itself' before the justice, or on appeal, or certiorari; but whether,, if he does not so raise it, he can object for the want of' jurisdiction, when sued upon the judgment, and that without any proof of the residence or non-residence, when the docket is silent upon it, is quite a different question. Suits may be instituted in either way, and the validity of the-summons will depend upon the question of residence. In case of a long summons, can we, to defeat the jurisdiction, presume that either party was a non-resident, where a long summons has been issued, because the fact of residence is-not made to appear upon the docket ? This will hardly be contended.
Can we, on the other hand, when the summons has-been a short one, presume, for the purpose of defeating the-
If the statute required any evidence to be given before the justice, showing the residence or non-residence, and the entry of such fact upon the docket, or its preservation among the files, and no such entry appeared in the docket, nor was shown by the files, and there was nothing in the return to show that such proof had been given, then the .statute not being complied with, it would be sufficient to .say, the statute required the fact to be proved, upon which the jurisdiction depended, and as it does not appear in the return, it is not shown, and the judgment is a nullity.
It was held in Allen v. Stone, 9 Barb., 60, that the provision of the New York statutes, requiring a long summons (which in this particular provision was the same as ours), was prima facie applicable to all cases, unless the party can show to the justice such facts as will authorize a summons of a different character, and that when the return of the justice to a certiorari shows no fact authorizing him to issue a summons returnable in two days, it will be held, prima facie, that a summons thus issued, was issued without authority, and that it cannot be inferred that the defendant was a non-resident of the county, when there is no fact stated in the return to warrant that supposition. But there was an express statute, applicable to that case, by which the plaintiff, to entitle himself to a short sum
Besides, the questions there arose in the cause itself, upon certiorari; and the case, although unquestionably good law under their statute, is therefore no authority for the proposition that the judgment can be collaterally attacked under a statute which requires no such proof.
While our statute makes provision for the issuing of a short summons, of not less than three days, when the first .summons issued is returned not served, it has, in effect, made the return of non-service the evidence upon which a short summons may issue in that particular case. — Comp. L., 1857, § 8667.
In providing also for the issuing of an attachment, as well as a warrant, it has required proof by affidavit, of the requisite facts upon which alone such process is allowed to issue. But these are special and peculiar cases, not commenced by the ordinary process applicable to cases generally, which in personal actions, and all actions except replevin, is a summons.
But while the statute has made the residence or non-residence the test, whether the summons shall be a long or short one, it has made no provision for the proof of this fact before the justice, as a prerequisite to the issuing of a long or a short summons, nor required any security to be given, as in the New York statute, in the case above cited; nor has the statute required the statement of the fact, one way or the other, to be entered upon the docket, or to appear among the files. The statute, therefore, furnishes a strong inference that it was not the intention to require this fact, or the jurisdiction depending upon it, to be shown in order to sustain the judgment.
Can this court, when the question arises collaterally,
This conclusion being in accordance with the judgment of the circuit court, that judgment must be affirmed, with costs.