Ellis v. Fletcher

40 Mich. 321 | Mich. | 1879

Per Curiam.

The declaration in this case was sent to '.the county clerk without an entry fee. The clerk declined to file it until the fee was paid, and notified the parties accordingly. The fee was then paid. Meanwhile the plaintiffs, supposing the declaration had been filed, had served a copy.

Held that until the declaration was filed, there was no suit in existence, and as the service of the declaration was a substitute for process, service made before filing ,was entirely void, and the party could not be put i» default for not appearing. The defect was jurisdictional and the proceedings could not be aided by any amendment.

The question being a novel one, no costs were allowed on the motion.