Brown v. Knop

137 Mich. 234 | Mich. | 1904

Lead Opinion

Grant, J.

(after stating the facts). 1. It was not essential to the jurisdiction of the justice that the officer’s return should state that he had used due diligence to obtain personal service, and that, being unable to find the defendant Martin, he had left a copy of the summons at his last place of abode. The statute (section 720,1 Comp. Laws) provides that when suit is brought upon contract or obligation against two or more joint defendants, one of whom shall not be found in the county where suit is brought, the justice may “ at any time within four days from the return day of the writ by which such action was commenced, issue one or more alias writs of summons,” etc. The statute will be found in full in Reed v. Parker, 134 Mich. 68 (95 N. W. 979). This statute does not require a copy of the writ to be left at the defendant’s place of abode if he is not found within the county. Those cases based upon statutes. containing such requirements do not apply. Such are Segar v. Lumber Co., 81 Mich. 344 (45 N. W. 982); Adams v. Abram, 38 Mich. 302.

In Brooks v. McIntyre, 4 Mich. 316, under a statute similar to section 720, the return of the officer was the same as in this case, non est inventus, and was held to authorize a judgment joint in form against all the defendants. See, also, Gunzberg v. Miller, 39 Mich. 80; Fogg v. Child, 13 Barb. 246.

2. The justice was under no obligation to wait an hour for the appearance of the defendant before adjourning the case for the purpose of issuing an alias summons. The statute (section 836, 1 Comp. Laws) providing for a judgment of nonsuit in case the plaintiff shall fail to appear within an hour after the process was returnable, and the extension of that statute, by judicial construction, to a defendant (Talbot v. Kuhn, 89 Mich. 30 [50 N. W. 791, 28 Am. St. Rep. 273]), does not apply to cases of adjournment, but only when final judgment is to be taken.

3. The justice made no return as to whether Mr. Merriman gave evidence of his authority to appear as the agent for the plaintiffs. It was incumbent upon the defendants, in applying for the writ of certiorari, to show that no evidence of such authority was produced, and to require a return of the justice thereon. In the absence of such showing and a return, it will be presumed that authority was proved. Marquette, etc., Rolling Mill Co. v. Morgan, 41 Mich. 296 (1 N. W. 1045); Township of Fruitport v. Muskegon Circuit Judge, 90 Mich. 20 (51 N. W. 109).

4. No error was committed by the justice in issuing an alias summons upon the return day of the writ. Counsel for the defendants insist that the alias summons must be issued within four days before the return day of the writ, excluding the day specified for the return. Whether the statute means four days before the return or four days thereafter, it is unnecessary to decide. The return was made upon the hour and day named — the usual practice— and the request for an alias summons and for the adjournment of the cause and the issuing of the summons were simultaneous acts. It is the general rule that when an act is to be done within a certain number of days from a day, the day of the date is excluded. Inhabitants of Seekonk v. Inhabitants of Rehoboth, 8 Cush. 371. It was said in Cornell v. Moulton, 3 Denio, 12, that when the question had arisen under rules of practice, the first day was generally excluded; but that in the construction of statutes the decisions had not been uniform either in England or America. It was said in Cromelien v. Brink, 29 Pa. St. 522: “ The man who undertakes to reconcile the English decisions on the legal computation of time will find himself employed in an arduous work.” This remark is quoted by the federal court in Merritt v. Ona, 44 Fed. 369 (11 L. R. A. 724), and the federal court say, “ The remark may be applied with equal truth to the American decisions.” It was said in Lester v. Garland, 15 Ves. 248, that there is no settled general rule as applied to statutes, and that the day of the event in a given case must be excluded or included, as may be most conducive to the beneficial operation of the act. 1 Wood on Lim. § 54. The purpose of this statute was to facilitate actions against joint defendants. The judgment is not conclusive against one not served. At the common law all defendants must be served. The execution issued under this statute must show the names of the defendants who were not served and do not appear. Their property cannot be seized under the writ. If the plaintiff desires to secure a service upon the other joint defendants, he must procure an adjournment under this statute, and have am alias summons issued. The defendant served might naturally desire to have his codefendant brought in, and he has the right to appear at any time before judgment is rendered. Ralston v. Chapin, 49 Mich. 274 (13 N. W. 588). There is no reason in taking ■out an alias summons until it is determined whether the ■defendant not served will appear. We think the fair ■construction of this act is that the plaintiffs were entitled -to an alias summons on the return day of the writ, and -that that day should be counted as one of the four within which it might issue.

5. It seems to be contended by counsel for the defendants -that the court lost jurisdiction to render judgment against ■the defendant Knop under the recent case of Reed v. Parker, 134 Mich. 68 (95 N. W. 979). The record in that case differs from the one in this in several important particulars. The record in that case did not show that the ■action was upon a joint contract or obligation, while in this it does. In that case the record shows that the defendant not served was out of the county, but did not show in what county such defendant was to be found, or that the alias summons, as required by law, was directed to the sheriff or constable of the county where he might have been found. Neither did it show that the justice indorsed ■on the alias which defendant had been served in the county where the suit was commenced. In this case such indorsement was made upon the alias, and it was issued upon a return non est inventus, and directed to the sheriff of the same county where the suit was commenced, and no service was made of the alias summons for the reason that defendant Martin was not found within that ■county. At the common law in actions ex contractu on joint obligations all the defendants must be served with process. The statute was aimed at two classes of cases— one where one or more of the defendants resided out of -the jurisdiction, and presumably would not be found within it; and, second, where one or more shall not be found within the jurisdiction, though they may reside within it. In the Reed Case the defendant not served resided without the jurisdiction. In this case the defendant-not served was not found by the officer, and he so returned. Upon such a return the justice may issue an alias to the-sheriff or proper officer of the same county, and continue the cause. This was done, as the justice’s docket and return show. This was a full compliance with the statute. The Reed Case has no application to this.

The judgment of the court below is reversed, and that of the justice’s court affirmed, with the costs of all courts to the plaintiffs.

Moore, C. J., Carpenter and Montgomery, JJ., concurred with Grant, J. Hooker, J., concurred in the result.

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Rehearing

ON MOTION FOR REHEARING.

Per Curiam.

We are asked to grant a rehearing in this case on the ground that in attempting to distinguish this case from Reed v. Parker, 134 Mich. 68 (95 N. W. 979), we erroneously assumed that the alias summons was-delivered to the sheriff of the county of Charlevoix, whereas it was in fact delivered to the sheriff of the county of Em-met. This error does not affect the reasoning, in our opinion. This case is distinguished from Reed v. Parker, supra, by the circumstance that the trial court, in adjourning the case and in issuing the alias summons, assumed* and had a right to assume, — this is shown by the direction in the alias, not by the return, subsequently indorsed thereon, — that the defendant not served would be found within the county in which the court was held." In other words, the record in the case at bar shows an adjournment to enable service to be made in the home county* while in Reed v. Parker, supra, the record shows an adjournment to enable service tobe made in another county.

Application for rehearing denied.