Hitchcock v. Hahn

| Mich. | Apr 8, 1886

Champlin, J.

Plaintiffs recovered judgment in the circuit court for the county of St. Clair in a suit commenced by attachment. The affidavit was made and writ issued January 18, 1884, and returnable February 5th of that year.

No personal service was obtained upon the defendants, but property belonging to the defendants was attached, and the proceedings thereafter to judgment were in conformity to the statute in cases where property is attached and no personal service is had.

Various irregularities are alleged in the proceedings, by reason of which it is claimed that such proceedings are rendered void for want of jurisdiction. The objection most relied upon is that the writ was prematurely returned. The return day was the fifth day of February, 1884. The-sheriff’s return states that “ I have, on this eighteenth day of January, A. D. 1884, attached the following property,” etc., and then it concludes: “ And I do further return that I am unable to find the defendants in said attachment named in the limits of my bailiwick. The answer of F. L. Follensbee, Sheriff.” This writ, with the return indorsed thereon, was filed in the clerk’s office on the fifth of February, that being the return day thereof.

It is insisted, that the return shows that the return of the sheriff that he was unable to find the defendants was made upon the eighteenth day of January. In this counsel for defendants is mistaken. The date at the commencement of the return refers to the time of seizure, and the further-return has no reference to the first date, but takes effect from the filing, which was on the return day. This construction is the natural one, and has its support in the presumption that the officer has done his duty.

It is further objected that the return should have stated ■that neither of the defendants could be found, and that a return that the defendants could not be found is not suffi-' cient; but we think that the greater includes the lesser, and, where there is more than one defendant, a return that the .sheriff cannot find the defendants in the attachment is equivalent to saying that neither could be found, and would be false if one was found or could be served.

Objection is also made by the defendants to the sale made by the sheriff under the execution.

The statute provides that when a copy of the attachment shall not have been served, and the defendant shall not have appeared in the suit, judgment shall be rendered, and execution may issue in the same form as if such copy had been personally served; but such judgment shall not be conclusive against the defendants, and such execution shall only Authorize the officer to whom it is directed to sell the property attached in such suit; and the attorney issuing the execution shall indorse thereon or annex thereto a description of the property so attached, with a direction to the officer to .sell the same, or so much thereof as may be sufficient to satisfy the execution, and not to levy the same, or any part •thereof, upon any other property: How. Stat. §§ 8008, '8009.

In this case the execution was issued upon the judgment and levy made upon the property attached, but without the indorsement thereof by the plaintiffs’ attorney required by .statute. This was a proceeding after the judgment was perfected, and it is not perceived how this objection can be taken advantage of upon writ of error. It certainly could ■not render the judgment and prior proceedings void, and while such non-compliance and proceeding under the execution might not afford a protection to the officer or attorney from damages for any injury arising from a failure to comply substantially with the terms of the statute, it does not ■constitute a ground for a reversal of the judgment.

There appearing to be no error in the record anterior to judgment, it is affirmed.

The other Justices concurred.