Anderson v. Cole

72 N.W. 615, 114 Mich. 637, 1897 Mich. LEXIS 1149

Opinion

Montgomery, J.

The writ of error in this case brings up the record only, no bill of exceptions having been settled. Suit was instituted by filing a declaration, and entering a rule to plead, on February 28, 1896. Default was entered on the 23d of November, 1896. At this date no proof was on file showing service upon the defendant. It is conceded that this was an irregularity for which judgment should be set aside. Johnson v. Delbridge, 35 Mich. 436. A return was subsequently (December 1, 1896) made, but this return failed to show service of notice of the rule to plead. It is contended by defendant’s counsel that there was a.failure to .obtain jurisdiction, and that we should, in addition to reversing the judgment, enter a judgment in this court for defendant. The plaintiff has entered a motion to remand the record, for the purpose of having an amended return filed; stating, however, that if the court reverses the judgment, and remands the record, this will be satisfactory, as the plaintiff will then have an opportunity of presenting his application to the court below. This course will be taken. The motion will be denied, without costs, the judgment reversed on defendant’s appeal, and the record remanded for such proceedings as may be advised.

The other Justices concurred.