Manhard v. Schott

37 Mich. 234 | Mich. | 1877

Campbell, J.

In this case an attachment suit was brought before a justice in Marquette county, by plaintiff against defendants, but no property was found, and no personal service was had on any of the defendants; but substituted service was made on one of them, Nathan Schott, by leaving a copy of the writ at his last place of residence. The writ was returnable on the 18th of November, 1875, and the return was made on the 12th. The case was adjourned until December 20, at which time plaintiff declared. All the defendants appeared specially by attorney and moved to quash the proceedings for various defects going, as was claimed, to the jurisdiction. This motion being denied, the defendants pleaded the general issue, with certain special notices in bar, and a trial was had on the merits, resulting in a verdict for plaintiff. Affidavit was then made for an appeal, with special allegations going in part to the matters covered by the motion to quash, and in part to rulings on the trial upon questions of evidence. The circuit court reversed the judgment, on the special matters, without trial on the merits.

If there had been no appearance or plea before the justice, the jurisdictional questions would be important and might be decisive. Two of the defendants were not served at all, and as to the third, a question may arise as to whether there was such a “personal service” as authorizes a justice to proceed in attachment where no property has been seized. Comp. L., § 5285.

But, instead of resting on the defectiveness of the process to confer jurisdiction, all of these defendants joined in pleading in bar to the merits, and the case was regularly tried on their plea. Pleading to the merits brings the parties before the court whether lawfully served with process or not, and they cannot thereafter object to the manner in which they are brought in. Hart v. Blake, 31 Mich., 278; Crane v. Hardy, 1 Mich., 56; Pardee v. Smith, 27 Mich., 33-38.

The questions which arose on the trial cannot be made the ground of a special appeal, for reversing the judgment without a trial at the circuit. Albert v. Sutton, 28 Mich., 3; Dalton v. Laudahn, 30 Mich., 349; McGraw v. Sturgeon, 29 Mich., 426.

The case was one which should have been tried oh the issue of fact, and the court erred in reversing the judgment ■of the justice without a trial.

The judgment of the circuit court must be reversed with costs, and the cause remanded for trial.

The other Justices concurred.