King v. Harrington

14 Mich. 532 | Mich. | 1866

Campbell J.

.Plaintiff brought ejectment for certain lands, to which defendant set up title under attachment proceedings against plaintiff, which proceeded to judgment and sale. On the last day allowed for redemption, a judgment creditor applied to the Register of St. Clair county to redeem under the statute, but, as that officer would not receive drafts, or anything but lawful money, he accompanied the creditor to Detroit, where he received the amount due the same day, and returned home the day after. Meantime the purchaser at the attachment sale, as soon as the redemption ran out, applied at the Register’s office to the deputy in charge, and, learning there was no money there, at once obtained the sheriff’s deed. The redeeming creditor then applied to the Supreme Court, and obtained a mandamus on the sheriff, to deed to him under the redemption. Subsequently, after the expiration of about four years, defendant Harrington, who had purchased the attachment title, filed a bill in chancery against plaintiff, and the redeeming creditor, setting up his attachment title, and alleging fraud in the redemption proceedings, and praying to have them set aside# and releases executed. The parties were published as absentees, under the statute, and a decree was obtained decreeing a release from the j udgment creditor, and declaring that plaintiff had no title. More than seven years elapsed after this decree, before this suit was brought.

The decree, having been taken by default against absent defendants, cannot be sustained unless the proceedings to give the court jurisdiction were regular. — Platt v. Stewart, 10 Mich. 260. It is claimed by plaintiff that the decree, although seven years old, is not final, without an order of confirmation. As that order is a matter of right and not of discretion (2 Comp. L. § 3546), and as the statute is positive that a defendant must appear within that period (§3545), we do not think the omission of the order material. If the decree was otherwise regular, it must stand as a settlement of such claims to relief concerning the land as came within the scope of the bill. The only irregularity alleged is, that the affidavit of publication of the order to appear was not entitled in the suit. The order itself was duly entitled; and the settled practice in this State has never, so far as we are aware, required proof of service endorsed upon such a document, and referring to it, to have a separate entitling. The object of entitling affidavits is to connect them with a suit, so that perjury will lie upon them. We think an affidavit referring to a paper properly entitled, to which it is appended, must be assumed to have adopted the title by the reference.

We, therefore, think the decree valid. And it becomes necessary to consider its extent. Upon a careful examination of the bill, we think it cannot be considered as making a case to quiet title. It is framed to avoid an alleged fraud, in attempting to establish an unauthorized redemption of the attachment title. Complainant sets up no other interest in the land, and makes out no case for establishing any other. The defendants in that cause, therefore, were apprized of no other claim, and had constructive notice of no other. The decree precludes them from relying further on the redemption proceedings, but it does not vest in the complainant any title which he did not claim by his bill. The attachment title, therefore, must stand upon its own merits.

The attachment proceedings are assailed, on the ground that the steps necessary to give the court jurisdiction were not complied with.

The writ issued July 31st, 1849, and was, bylaw, and in fact, made returnable August 'Zth. On the day after its date it was returned served on the land in question, and, without waiting for the return day, it was also at once returned not found as to the attachment debtor. At the third term after the return, a declaration was filed, and judgment entered upon it the same day, without any proof of publication. Some time after the judgment an affidavit of publication was made and filed, which declared that a notice annexed had been published for six successive weeks “preceding the said 23d day of September.” There was nothing in the affidavit or papers referring to, or identifying any month of September, and the notice itself was not dated.

Where there is no personal service, the publication of notice is necessary to enable the court to obtain jurisdiction; and no judgment is valid without it. It has always been required in special proceedings against parties not served or appearing, that the substituted service shall be strictly regular under the statutes. The publication stands in lieu of personal summons. —Thompson v. Thomas, 11 Mich. 274. And the statute makes proof of publication a prerequisite to the plaintiff’s declaring and proceeding to judgment. — 2 C. L. § 4761.

In this case the return was premature, as the sheriff could not know that the defendant in attachment might not be found by the return day.

The declaration and judgment were both made when there was no proof that he had been legally notified. And, even if the subsequent filing of proof could have cured the defect, no such proof was furnished of any notice or publication conforming to the statute, as there were, no dates showing when the notice was given.

The judgment in attachment was, therefore, a nullity, and no title passed under it. The plaintiff is, therefore, entitled to a reversal of the judgment below, and to the entry of judgment in his favor, with costs of both courts.

The other Justices concurred.