Kline v. Blair

Circuit Court of the 45th Circuit of Michigan

Kline v. Blair

1 Mich. N.P. 184

CourtCircuit Court of the 45th Circuit of Michigan

DecidedMay 15, 1870

StatusPublished

This text of 1 Mich. N.P. 184 (Kline v. Blair) is published on Counsel Stack Legal Research, covering Circuit Court of the 45th Circuit of Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kline v. Blair, 1 Mich. N.P. 184 (Mich. Super. Ct. 1870).

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Opinion

By the Court,

Upson J.

The written notice of trial is required by §4,347, 2 C. L., to be served, “at least 14 days before the first day of the court, at which such trial shall be intended to behad.” This requires 14 days before the court, exclusive of the day of service. Grah. Prac. 2d Ed., 262; 5 Wend. 137; 10 Wend. 422. The first day of court is excluded in the computation of the time by the statute, and the day of service is excluded also, by Circuit Court rule 15. See also 1 Doug., 4 Mich. R. 450. There must therefore be 14 full days, in cases of personal service of notice, between the day [185]*185of service and the first day of the term. ' But where the service is by mail, as in this case, Circuit Court Rule 9, requires the time of service to be increased “ one day for every 20 miles dis. tance between the place of deposit and the place addressed.’’ There should have been 15 full days then, between the day of mailing this notice and the first day of the term, but as, it was actually mailed on the 9th, if we exclude that, and also the 24th, it leaves only 14 days,' which, although sufficient in eases of personal service, is not sufficient where service is by mail. Placing the notice in the post office on Saturday, after the mail had left, is no mailing of it on that day, as it could not then be actually mailed before Monday, the 9th, and to uphold such service, would practically defeat or repeal the rule. To be counted as a service, by mailing on the 7th, it should have been dropped in the post office in season for the mail oil that day. See 2d Wend., 249, 631.

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By the Court,

Upson J.

The written notice of trial is required by §4,347, 2 C. L., to be served, “at least 14 days before the first day of the court, at which such trial shall be intended to behad.” This requires 14 days before the court, exclusive of the day of service. Grah. Prac. 2d Ed., 262; 5 Wend. 137; 10 Wend. 422. The first day of court is excluded in the computation of the time by the statute, and the day of service is excluded also, by Circuit Court rule 15. See also 1 Doug., 4 Mich. R. 450. There must therefore be 14 full days, in cases of personal service of notice, between the day [185]*185of service and the first day of the term. ' But where the service is by mail, as in this case, Circuit Court Rule 9, requires the time of service to be increased “ one day for every 20 miles dis. tance between the place of deposit and the place addressed.’’ There should have been 15 full days then, between the day of mailing this notice and the first day of the term, but as, it was actually mailed on the 9th, if we exclude that, and also the 24th, it leaves only 14 days,' which, although sufficient in eases of personal service, is not sufficient where service is by mail. Placing the notice in the post office on Saturday, after the mail had left, is no mailing of it on that day, as it could not then be actually mailed before Monday, the 9th, and to uphold such service, would practically defeat or repeal the rule. To be counted as a service, by mailing on the 7th, it should have been dropped in the post office in season for the mail oil that day. See 2d Wend., 249, 631.

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Bluebook (online)

1 Mich. N.P. 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kline-v-blair-micirct45-1870.

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