Clink v. Circuit Judge

1 McGrath 551, 58 McGrath 242

• Court: Michigan Supreme Court
• Decided: October 27, 1885
• Status: Published

Opinion

. To vacate an order striking from the files a paper writing purporting to be a recognizance of special bail, filed by relator on Monday, June 8, the twenty days after the return day having expired on Sunday, June 7.

Denied without costs, October 27, 1885.

The plaintiff in the suit moved the Circuit Court to strike-the paper from the files, because (1) it was not executed and filed within twenty days after the return day. of the writ; (2) before it was filed plaintiff had taken an assignment of the bond to the sheriff and commenced suit thereon; (3) it was not taken and acknowledged before any officer or person authorized to take acknowledgements of recognizances of special bail, and (4) it was void and filed without authority. The court granted the motion and the paper was stricken from the files.

Held, that if the twenty days, within which a person arrested on a capias is entitled to file special bail, expire on Sunday, he has the whole of the following day in which to file it; that a recognizance of special bail acknowledged before a Notary Public is void; that a motion to strike from the files, is the proper procedure for getting rid of a document that is a nullity; that a default for failing to file special bail may be disregarded if prematurely entered and if an attempt in good faith has been made to file such bail hut the bail turns out to be a nullity, defendant should bo allowed a further reasonable opportunity to file it and to perfect it if excepted to.