Allured v. Voller, 107 Mich. 476

Allured v. Voller

107 Mich. 476 | Mich. | 1895

Montgomery, J.

This is an action of ejectment. Plaintiff recovered a judgment, and defendant appeals. Special findings of fact were filed, from which it appears that prior to September 8, 1892, one Elbert D. Pierson was the owner of the property in question. Plaintiff on that day filed a claim of lien with the register of deeds, and the defendant at about the same date also filed a claim of lien. On the 3d of November, 1892, plaintiff and defendant both commenced suit in the Osceola circuit court against Pierson. Defendant, it would appear, failed to prosecute his suit to effect, but after the levy upon plaintiff’s judgment, hereinafter referred to, procured a quitclaim deed from Pierson, and claims title thereunder. In the suit instituted by plaintiff the summons was in the usual form in assumpsit, with a statement added to the effect that the suit was instituted to enforce a mechanic’s lien. The declaration filed in the case was on the common counts in assumpsit, with a like statement appended. The judgment was in assumpsit, with a statement that the suit was instituted to enforce a lien on’ the property in question. An execution was issued, in which the sheriff was commanded to make the amount of the judg*478ment, costs, etc., “of the goods and chattels of Elbert D. Pierson, and, for want thereof, then of his lands and tenements.” This execution also contained a recital of the fact that the suit was instituted to enforce a mechanic’s lien on the property in question. Under this execution a levy was made on the property in question, and a sale subsequently made thereunder to the plaintiff. The sheriff, in his return, certified that he was unable to find any goods and chattels in his bailiwick. In the suit referred to there was no return of service upon defendant, but the following acceptance of service was filed, and the genuineness of the signature proved by affidavit:

“Flint, Mich., 11-8-1892,

“I, Elbert D. Pierson, defendant in the within attached summons, do hereby accept service of the same this 11th day of November, 1892, and hereby waive formal service by an officer, and alieno the plaintiff herein named to proceed with the case, the same as .though service had been made as commanded in said summons. ^

“Signed in the presence of ^

“Lizzie Pieeson.

[ Signed ] “Elbeet D. Pieeson.”

It is contended that the acceptance of service at Flint gave the court no jurisdiction in the assumpsit case, and that, the execution being in form under the lien statute,, and that statute not being operative, the sale was void.

1. The authorities are not harmonious on the question of the effect of a mere acceptance of a service of a writ beyond the jurisdiction of the court. Perhaps -by the weight of authority such acceptance operates as evidence of a service at the place where such acceptance is indorsed, and has no greater effect than proof of an actual service made at that place. 2 Enc. Pl. & Prac. 638, and cases cited. But see Vermont Farm Machine Co. v. Marble, 20 Fed. 117; Cheney v. Harding, 21 Neb. 65; Johnson v. Monell, 13 Iowa, 300. But in the present case the indorsement on the summons was something more than an acceptance of service. It contained a stipulation that *479plaintiff might “proceed with the case the same as though service had been made as commanded in said summons;” that is, in the county. If an appearance may operate to waive service, as is universally held, it is difficult to understand why an agreement to waive service, duly signed, and evidently intended to be filed in the case, may not and should not have a like effect. It has been held that the admission of service is, if accompanied by an agreement to enter an appearance, sufficient to confer jurisdiction, even though such agreement be made beyond the territorial jurisdiction of the court. Keeler v. Keeler, 24 Wis. 525; Shaw v. Bank, 49 Iowa, 179. See, also, cases cited above.

2. The execution wras not- invalid. Defendant’s counsel relies upon the case of Koepke v. Dyer, 80 Mich. 311. In that case it was held that, although the plaintiff had attempted to foreclose his lien in a proceeding at law, and although this attempt was ineffectual, yet the judgment in assumpsit was good as a personal judgment. The execution was, however, set aside, for the reason that the command of the writ was to levy on the specific property covered by the lien, and was not general. The writ in the present case is not open to any such criticism. The command was general, and the mere recital of the lien did not modify this command in any way.

Judgment affirmed, with costs.

Long, Grant, and Hooker, JJ., concurred. McGrath, C. J., did not sit.