Anderson v. Lane

105 Mich. 89 | Mich. | 1895

Montgomery, J.

The relator sued out a writ of replevin for certain goods in the possession of one William A. Bennett. The writ was returned duly served. The defendant in the case appeared specially, and moved to dismiss the proceedings for the reason that the copy of the writ served upon him was not certified by the officer. This motion was granted, and the writ dismissed. Application is now made for mandamus to require the circuit judge to vacate the order of dismissal.

The service was irregular. How. Stat. § 8326, provides that the service shall be made by delivering to the defendant personally a certified copy of the writ, if the defendant can be found; but the proper practice in such case is to allow an alias writ to issue, rather than to dismiss the proceeding. See Wells, Repl. § 466; Bell v. Circuit Judge, 26 Mich. 414; Ex parte Johnson, 7 Cow. 424. There is no reason why the default of the sheriff should compel the plaintiff to lose the benefit of his proceedings. There has been no substantial damage to the defendant. See, also, Leonard v. Woodward, 34 Mich. 514.

We think the order dismissing the proceedings should be vacated. If there be no appearance, an alias writ should be permitted, to complete the service. Relator will recover costs against the defendant in replevin.

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