Slattery v. Hilliker

39 Mich. 573 | Mich. | 1878

Cooley, J.

This case • originated in justice’s court. The return of the constable to the process which commenced it, showed due service. The defendant appeared on the return day and pleaded to the merits. Subsequently the constable was permitted by the justice to amend his return, and he made such an amendment as showed the service to have been insufficient. The defendant thereupon moved to dismiss the cause, which motion was denied. The denial of this motion is the error now relied upon.

When the motion to dismiss was made, there was an issue on the merits, and no motion was made by defendant for leave to withdraw his plea. At that stage of the case it was of no importance whether the writ was or was not properly served. Stone v. Welling, 14 Mich., 514; Falkner v. Beers, 2 Doug. (Mich.), 117.

The judgment must be affirmed with costs.

The other Justices concurred.