Denison v. Smith

| Mich. | Jan 5, 1876

Campbell, J:

Smith sued Denison jointly Avith one Bush, upon contract, in the superior court of Grand Rapids. Suit Ayas commenced by declaration, and the sheriff made return of sendee on both defendants in Kent county, and did not certify that either Avas served in Grand Rapids. Judgment Avas rendered by default, on the 10th of July, 1875. On the 19th of July, upon an ex parte motion, the sheriff Avas alloAved to amend his return so as to sIioav service on Bush in Grand Rapids before service Avas made on Denison. The errors, assigned in this court are based upon the irregularity of the default, AA'hen no jurisdiction appeared.

The jurisdiction of the superior court is declared to extend to civil cases invoking more than one hundred dollars, Avhere service of declaration or process is made on one or all of the defendants within the city of Grand Rapids, or where the plaintiff resides in Grand Rapids and seiwice is made on a defendant in Kent county. — L. 1875 p. 44, § 18. It does not appear from the declaration that the plaintiff resides in Grand Rapids, and therefore the jurisdiction depended on the proper service of process on Bush.

The court in question, though having a large jurisdiction over causes of action, is a court of special and limited jurisdiction as to persons, and in all such cases jurisdiction must be shoAvn, and cannot be presumed. In Turrill v. Walker, 4 Mich, R., 177, it Avas held a circuit court process could not be served Avithout the county, in the absence of any statute authorizing it, and that court, though having general poAvers, could have no jurisdiction over persons not found Avhere they could be laAvfully^seiwed. A municipal court created for a city would' be an anomaly, if it could send its process abroad for general purposes. The powers of the circuit courts to reach defendants beyond the county, is confined to cases where one, at least, is served within it. In the case of joint debtors the practice is governed by section 5748 of the Gonypilecl Laws. That section expressly contemplates a service at home on one or more defendants, before the plaintiff can sue out further process or deliver a declaration to be served beyond the county on the rest, and in the case of .process it evidently requires a return of “not found” as a preliminary. The language, though not precise, contemplates some evidence of service on one as a foundation for a further writ, and the same provision allows the plaintiff to have his declaration and notice of rule to plead, which are a substitute for process, “served on the defendants not elsewhere served in any other county in this state.” It was never intended that an absent defendant should be pursued until service was made and proved on the other within the jurisdiction. That is a condition precedent. A defendant has a right to know from the'record whether he is subject to the jurisdiction; and where it depends on a previous service on some one else, that can' only be shown by the return of service, or by appearance.

Neither can a court render judgment against a party who has not appeared, without some evidence of jurisdiction. In Wells v. Walsh, 25 Mich, R., 344, it was held that where a publication was had in attachment, although regularly made, no default could be entered until after proof of publication was filed. The statute only allows a default on proof of service in any case. — C. L. §§ 5724, 5732. It is claimed, however, that by the statute of amendments no judgment by default shall b.e reversed for any “imperfect or insufficient return.” — C. L. § 6051. This, however, must be read in the light of the whole section, and cannot go beyond formal defects or those by which “neither party shall have been prejudiced.”

A defect in jurisdictional showing cannot be held formal or immaterial. And "the return in the present case was not imperfect or informal. It was full and perfect in declaring tbe service to have been in the county of Kent (which phrase under this statute means outside of Grand Rapids), and therefore notified the defendant'Denison that Bush was “not found” in the jurisdiction, and that he himself could not be held. An amendment might be proper to found further proceedings and service upon, but after such a return Denison was not bound to watch the records, and could not be affected by the amendment ex parte. Still less could it be retroactive against him.

The act creating the superior court expressly adopts the legal rules applying to the service of process from circuit courts beyond county limits, as governing service of process in that court beyond the city. — Sec. 14, L. 1875, p. 45. "We have already seen what is required in such cases in the circuit courts.

"We think the default was not authorized, and that the amendment did not cure it.

The judgment must be reversed, with costs, as to Denison.

The other Justices concurred.