Anderson v. Lane

Michigan Supreme Court

Anderson v. Lane

62 N.W. 1027, 105 Mich. 89

CourtMichigan Supreme Court

DecidedApril 16, 1895

StatusPublished

Cited by1 cases

This text of 62 N.W. 1027 (Anderson v. Lane) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Anderson v. Lane, 62 N.W. 1027, 105 Mich. 89 (Mich. 1895).

Pincite

Opinion

Montgomery, J.

The relator sued out a writ of replevin for certain goods in the possession of one William A. Bennett. The writ was returned duly served. The defendant in the case appeared specially, and moved to dismiss the proceedings for the reason that the copy of the writ served upon him was not certified by the officer. This motion was granted, and the writ dismissed. Application is now made for mandamus to require the circuit judge to vacate the order of dismissal.

[90]*90The service was irregular. How. Stat. § 8326, provides that the service shall be made by delivering to the defendant personally a certified copy of the writ, if the defendant can be found; but the proper practice in such case is to allow an alias writ to issue, rather than to dismiss the proceeding. See Wells, Repl. § 466; Bell v. Circuit Judge, 26 Mich. 414; Ex parte Johnson, 7 Cow. 424. There is no reason why the default of the sheriff should compel the plaintiff to lose the benefit of his proceedings. There has been no substantial damage to the defendant. See, also, Leonard v. Woodward, 34 Mich. 514.

We think the order dismissing the proceedings should be vacated. If there be no appearance, an alias writ should be permitted, to complete the service. Relator will recover costs against the defendant in replevin.

McGrath, C. J., Grant and Hooker, JJ., concurred. Long, J., did not sit.

Free access — add to your briefcase to read the full text and ask questions with AI

Montgomery, J.

The relator sued out a writ of replevin for certain goods in the possession of one William A. Bennett. The writ was returned duly served. The defendant in the case appeared specially, and moved to dismiss the proceedings for the reason that the copy of the writ served upon him was not certified by the officer. This motion was granted, and the writ dismissed. Application is now made for mandamus to require the circuit judge to vacate the order of dismissal.

[90]*90The service was irregular. How. Stat. § 8326, provides that the service shall be made by delivering to the defendant personally a certified copy of the writ, if the defendant can be found; but the proper practice in such case is to allow an alias writ to issue, rather than to dismiss the proceeding. See Wells, Repl. § 466; Bell v. Circuit Judge, 26 Mich. 414; Ex parte Johnson, 7 Cow. 424. There is no reason why the default of the sheriff should compel the plaintiff to lose the benefit of his proceedings. There has been no substantial damage to the defendant. See, also, Leonard v. Woodward, 34 Mich. 514.

We think the order dismissing the proceedings should be vacated. If there be no appearance, an alias writ should be permitted, to complete the service. Relator will recover costs against the defendant in replevin.

McGrath, C. J., Grant and Hooker, JJ., concurred. Long, J., did not sit.

Cite This Page — Counsel Stack

Bluebook (online)

62 N.W. 1027, 105 Mich. 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-lane-mich-1895.

Opinion

Related

Cite This Page — Counsel Stack