16 Mich. 9 | Mich. | 1867
The plaintiff having shown a prima facie right in himself to the recovery of the premises in question, the defendant sought to defeat that right by showing sales on two executions, against the plaintiff, issued on transcripts of justices’ judgments which had been filed in the Circuit Court. A portion of the premises was sold on each of the executions.
The statute only authorizes a transcript to be filed in the Circuit Court after execution has been issued by the Justice and returned unsatisfied; and it is objected that
It is also objected -that the executions issued by the justice were returned prematurely. Both appear to have been returned on the sixtieth day after date; and the plaintiff claims that he was entitled to the whole of the sixtieth day in which to make payment. The sixtieth day, however, was the return day; and although the statute allows the officer to make the return at any time within five days thereafter, without subjecting himself to liability (Oomp. L. § 3827), he may also make return on the return day; and a strict obedience to his process would require him to do so. One of the executions, however, was returned on Sunday; and that fact is fatal to the proceedings on the transcript based upon it.
But there is another fatal objection to both of the transcripts, and to all proceedings under them. It does not appear that either of the transcripts were certified by the Justice, or that any such affidavit was attached thereto as was required by the statute. A special statutory proceeding of this description which is to divest a man of his title in invitum must be in strict compliance with the statute in all those particulars designed for the protection of the defendant. The certificate to the transcript and the affidavit
The judgment must be reversed, with costs, and a new trial ordered.