Corning v. Burton

102 Mich. 96

• Court: Michigan Supreme Court
• Decided: April 16, 1895
• Status: Published

Opinion

Hooker, J.

Hpon a rehearing of the above cause the defendant Dickerson claims the right to question the return of service of the original subpoena in the foreclosure case, having denied, by his answer, that any service was made upon him.

It has been indicated in several cases that the validity of the decree cannot be questioned in this proceeding. Ransom v. Sutherland, 46 Mich. 489; Wallace v. Field, 56 Id. 3; Haldane v. Sweet, 58 Id. 429. The defendant might have the question of the validity of the decree determined by a proper motion before enrollment, or upon bill of review after enrollment. In such case all interested should be made parties, and complete. relief to all could be given. We think either would be a better practice than to open the question to an informal hearing in an ancillary proceeding, and therefore adhere to the doctrine stated in the cases cited, viz., that petition for execution for deficiency cannot be resisted on grounds inconsistent 'with the decree.

The other Justices concurred.