Lacomb v. Godkin

106 N.W. 702, 143 Mich. 193, 1906 Mich. LEXIS 618

Opinion

Grant, J.

(after stating the facts). It does not appear from the return of the justice that any evidence was produced before him that the plaintiff was a nonresident. Counsel for both parties, however, have argued the case assuming that to be the fact, and that it was inown to the justice. It was decided in the early case of Parks v. Goodwin, 1 Doug. (Mich.) 56, that the failure of a nonresident to give security for costs before issue of summons was not jurisdictional, and the proper practice was held to be to move to set the process aside for failure to give security. Whether the motion to give security for costs is the equivalent of a motion to set the process aside we need not determine. By pleading to the merits and going to trial the defendant waived security in the justice’s court. This court has repeatedly held that where a defendant denies a proper service of summons, and moves to quash for that reason, he waives the question by pleading to the merits and proceeding to trial. Dailey v. Kennedy, 64 Mich. 208; Sherwood v. Ionia Circuit Judge, 107 Mich. 136; Gunn Hardware Co. v. Denison, 83 Mich. 40; Waldron v. Palmer, 104 Mich. 556.

Besides, as the justice had jurisdiction under Parks v. Goodwin, the appeal gave the appellate court jurisdiction, and the proper practice would have been to move for security for costs in the circuit court.

Judgment affirmed.

McAlvay, Blair, Montgomery, and Ostrander, JJ., concurred.