Drew v. Claypool

28 N.W. 78, 61 Mich. 233, 1886 Mich. LEXIS 883

• Court: Michigan Supreme Court
• Decided: April 29, 1886
• Status: Published

Opinion

Campbell, C. J.

In this case judgment by default was entered under a writ of attachment returnable April'T, 1885, and returned “Not found,” April4, 1885.

It is assigned as error that this return was premature, and not good in support of the judgment. This has been so often decided that no discussion is needed.¹

The judgment must be reversed, with costs of both courts.

The other Justices concurred.

1 A justice of the peace has power, under the statute of amendments, to permit an officer to amend his return to a writ of attachment by showing when, it was in fact made and the writ and return filed with the justice. Kidd v. Dougherty, 59 Mich. 210 (head-note 2).

A sheriff, in his return to a writ of attachment issued January 18 and returnable February 5, certified to the seizure of property on the teste day, and that he was unable to find the defendant, and returned and filed the writ and return on the return-day.

Held, that the return was not premature; that the certificate of his inability to find the defendant had no reference to the date of the seizure, but took effect from the date of filing. Hitchcock v. Hahn, 60 Mich. 459 (head-note 1).