Bogue v. Prentis

| Mich. | Oct 19, 1881

Graves, J.

It appears from the return to the writ of error that the two writs of summons were issued in the same case at the same moment and were served and returned together, the sole distinction between them being that one was testdd in the name of the then chief justice of this court and the other in the name of Judge Beilly. The plaintiffs in error are precluded from .contending that the two precepts effectuated the commencement of two distinct suits: because the record brought up in answer to their own writ of error and on which record they are demanding the judgment of the court, exhibits the two writs of summons as allied proceedings in the one case, and it is only necessary to read them to perceive that they are exact counterparts in e’very particular except as to the officer mentioned in the test. "Whatever may have been the force of the one or the other .or of both together it is now certain that nothing more was practically accomplished than the commencement of this suit. The state of the case as formulated by the plaintiffs in error admits it, and the circumstance that the clerk saw fit to send out two writs instead of one does not ■appear to have worked prejudice. Only one set of proceedings and one judgment followed. The only effect produced was that of one process and it is not material to inquire now which was regular and which not.

Whatever was technically amiss is cured by the statute. Comp. L., subdivision 1 § 6051. The default for want of appearance was not entered until the arrival of the 31st day succeding the return-day of the summons. But as the declaration was not filed until the 21st day it lacked a few hours of being on file for the full literal time given to the party by the rule of court to make his appearance subsequent to the first 20 days. There is no reason to suppose that this caused the least prejudice. No offer to appear seems to have been meditated until long afterwards. The writ of error cannot prevail for this practice. Subdivision 13 of § 6051.

The criticism on the form of the rule for default is not well grounded. Wilcox v. Sweet 24 Mich. 356. At the time of entering default and down to the 6th of September, 1880, there had in truth been no appearance. This is admitted. But the plaintiffs’ attorney neglected to place on file any express proof of the non-appearance. This negligence of the attorney is no ground for reversing the judgment on writ of error. The defendant has not been injured. See statute last cited. The omission might have been cured nimc fro tmic in the court below. The case calls for no further notice.

The judgment should be affirmed with costs.

The other Justices concurred.