Michels v. Stork

44 Mich. 2 | Mich. | 1880

Marston, C. J.

The return made by the constable to the writ of attachment did not show proper service of the writ, and gave the justice no jurisdiction to proceed and render judgment in the cause. Nicolls v. Lawrence 30 Mich. 396; Town v. Tabor 34 Mich. 263; Adams v. Abram 38 Mich. 302-4.

On the return day the defendant appeared and moved to dismiss the writ because no proper service was shown by the return. This was not such an appearance as would give the justice jurisdiction. A justice of the peace may acquire jurisdiction over the person either on a return showing proper service of the writ, or on the voluntary appearance of the defendant. But where the defendant appears and objects to the jurisdiction because no proper service of the writ appeal’s to have been made, we do not see how this can be considered as a submission to the jurisdiction. It has been assumed that the defendant must declare that he appears specially for tbe purpose of making his motion or objection, and for no other purpose, or i¿hat jurisdiction will lie conferred because of his general appearance. No doubt a general appearance would confer jurisdiction, but the-appearance and objection then made should be considered together; and so considered the objection or motion made limits and explains the appearance, and clearly indicates an intention not to confer a jurisdiction where one is wanting. This, to my mind, is the more reasonable and sensible doctrine, does away with needless technicality, and certainly injures no one, while it promotes justice and prevents a grasping at shadows.

The levy having been made upon property of a species exempt from execution to a specified value, it was the duty of the officer to have the property appraised and give the defendant an opportunity to make his selection under the statute. Comp. L., §§ 6102-3. These provisions are equally applicable to justice court as to circuit attachments. The fact that the defendant may, at the time of the levy, have said the property seized belonged to his brother, would not be conclusive and would' not excuse the officer. If the officer believed such statement, then he had no right whatever to seize the property at all, as his writ did not command him to take any but the property of the defendant therein; and if he seized it as his property under the writ, then it was his duty to give the defendant an opportunity to make his selection under the statute.

The defendant in this case was present at the time of such seizure and directed the same, but we do not understand that he was in any way the cause of the errors thereafter committed by the officer. If the officer did not give the defendant in the attachment suit an opportunity to make his selection, or did not properly serve the writ on the defendant, for such omissions he would be responsible, but the plaintiff in the attachment proceedings would not thereby become liable as a trespasser. At the time the levy was made under the attaching plaintiff’s instructions, the writ was a valid one and protected both himself and the officer in such seizure. And the acts of the officer afterwards in failing to perform his duty would not render the plaintiff a trespasser ab initio.

Under this view the other questions raised are not material, and will not be passed upon.

The judgment must be reversed with costs and a new trial ordered.

The other Justices concurred.