Green v. Kindy

1 Mich. N.P. 41

Opinion

By the Court,

Brown, J.

Objection is made to the reading of plaintiffs’ "affidavits. It is claimed that ‘- J. P.” is not a sufficient designation of the official character of the person 'who administered the oath. “ Such abbreviations as are commonly used in the English language may be used.” C L. § 4070. “ J P., Justice of the Peace.” Webster's Unabridged Dictionary, page 1505. The affidavits, in this respect, are sufficient.

It is contended that this motion is not made in time. <!No judgment, in any Court of Record, shall be set aside for irregularity on motion, unless such motion be made within one year after the time such judgment was rendered.” G. L. § 4440 It is the duty of the party complaining of the irregularity, to move to set aside the proceedings at his earliest opportunity, after discovering such irregularity. From the affidavits I am satisfied that the plaintiffs have not been guilty of laches in this respect, and that therefore they are in time. The motion is in time, being within the year.

It is said “ the plaintiff has filed no affidavit of merits ” The original affidavit attached to the writ is a sufficient affidavit of merits.

The defendant insists that as no issue is formed, there would be nothing to try, if a new trial were granted — that a declaration could not be filed, because the property is not in the possession of plaintiffs.

This is a motion to set aside a judgment, for irregularities, and that an issue may be formed:

It is not necessary that the plaintiff should have possession of the property, in order to proceed in the action lor the recovery of the same, or the value thereof. C. L., § 5017.

No notice of the assessment of damages was given to the plaintiffs. No damages could be legally assessed, except as provided for by chapter 152, V. L. • and “ whenever any damages shall be assessed, pursuant to any provisions contained in this chapter, the same notice thereof shall be given to the adverse party, as is required by law, and the practice of the Court in the like cases in personal actions.” C. L. § 5039. In personal actions, fourteen.days notice is required. Whether under the circumstances of this case the defendant should recover more than his costs, quere, C. L., § 5040.

Notiee of the taxation of costs was served on plaintiffs, one day after the time named in the notice for the taxation. The taxation however, was not made until several days thereafter; and defendant claims that he notified plaintiffs, orally, of that fact.

The notice should have been served on the plaintiff’s attorney. Let an order be entered vacating the judgment, and setting aside default, allowing plaintiffs twenty days, in which to file declaration, and serve copy.