Boyle v. City of Detroit

115 N.W. 1056, 152 Mich. 248, 1908 Mich. LEXIS 842

• Court: Michigan Supreme Court
• Decided: April 1, 1908
• Docket: Docket No. 134
• Status: Published

Opinion

Grant, O. J.

(after stating the facts). The service of the declaration upon a clerk in the office of the corporation counsel was a nullity. No suit was commenced until there was a proper service of the declaration. Detroit Free Press Co. v. Bagg, 78 Mich. 650.

It is claimed that a default of the city was entered on April 21, 1903, for nonappearance under the service which was made on Mr. Guinness. A defendant cannot be defaulted upon a void service of summons. Ellis v. Fletcher, 40 Mich. 321; South Bend Chilled Plow Co. v. Manahan, 62 Mich. 143.

The statute describing the prerequisites to bringing suits of this character against the city of Detroit is so plain that the lawyer or layman “who runs may read.” Noncompliance with the statute is inexcusable. The sole ground upon which plaintiff now seeks to maintain her suit is that the defendant waived these wise provisions of the statute.

Extended discussion is unnecessery. The case is ruled by Holtham v. City of Detroit, 136 Mich. 17, against the plaintiff’s contention. See also Klass v. City of Detroit, 129 Mich. 35.

Judgment affirmed.

Montgomery, Ostrander, Hooker, and Carpenter, JJ., concurred.