Baldwin v. Branch Circuit Judge
12 N.W. 686
Mich.
1882
Check Treatment
Graves, C. J.

Thе relator, a resident of Eaton county, was arrested therein оn a criminal warrant from a justice of the peace of Branch county, on complaint of Horace Holcomb, and tаken by the arresting officer before said justice in that county. This was on the 18th of ‍‌‌​‌​​‌‌‌‌​​‌‌​​​​​​‌‌​​​​‌​​​‌‌​​​​‌‌​​‌‌​‌‌​​​‍May. On request of relator the examination was postponed until the 31st, and he at once gave bail for his appeаrance at that time. But on the same occasion and at thе same place and about the time of his temporary relеase on bail he was arrested on a *526civil oapias from the circuit court fоr such county at the suit of the complainant in the criminal prosecution and on the same matter. In order -to escape imprisonment he furnished appearance bail; but subsequently moved tо set aside the proceedings, and the court ordered his relеase from custody and that the requirement of bail should be vacated and that the bail-bond ‍‌‌​‌​​‌‌‌‌​​‌‌​​​​​​‌‌​​​​‌​​​‌‌​​​​‌‌​​‌‌​‌‌​​​‍should be delivered up, but reserved action on the question of annulling the service of the writ, and directed that, relator cause his appearance to be entered in the cause on or before a week, and that he have leave to show cause within that time why this requirement for him to enter his appearance should not be vacated and the writ quashed.

It аppears from the return to the order to show cause that оn the hearing of the motion to set aside the ‍‌‌​‌​​‌‌‌‌​​‌‌​​​​​​‌‌​​​​‌​​​‌‌​​​​‌‌​​‌‌​‌‌​​​‍proceedings the circuit judge and relator’s counsel came to an understanding that so much of the motion as related to the quashing of the writ or vacating the service of it should be held under advisement for a week to enable relator’s counsel to furnish the judge with a brief. And it also appеars that in that interval relator’s counsel forwarded a communication in which ho cited a case ‍‌‌​‌​​‌‌‌‌​​‌‌​​​​​​‌‌​​​​‌​​​‌‌​​​​‌‌​​‌‌​‌‌​​​‍in this Court and explained his .views and that this communication was intended for the brief he had agreed to furnish. The circuit judge did not regard it in that light and wrote back that he would awаit the promised brief and not decide immediately. ITe referred tо two decisions at nisi prius as bearing somewhat on the question. The matter remained undecided ‍‌‌​‌​​‌‌‌‌​​‌‌​​​​​​‌‌​​​​‌​​​‌‌​​​​‌‌​​‌‌​‌‌​​​‍and this application to show cause was made to this Court.

It is not surprising that the learned judge was not fully prepared to hold, without opportunity for examination, that the service of the civil process was improper and subject to bе set aside, and that he felt that it was incumbent on the party moving to рroduce authority. Our attention has been called to the subject recently in several cases and we are satisfied that the law was with the relator in his application to the circuit court'аnd that he was then entitled as matter of right to have the service оn him vacated, and we are unable to see that he has either lost or surrendered this right;

*527"Within the week allowed by the order of the cоurt for the disposal of the question the relator’s counsel furnished suсh authority and explanations as he was able, and indicated that his letter constituted the brief which liad been required of him, and when the week was ended, if not before, it was the relator’s right, as this Court views it, to have the relief which was asked for from the court.

The writ must be allowed with costs to the relator against Horace Holcomb, the plaintiff in the civil cause.

Campbell and Cooley, JJ. concurred.