Low v. Circuit Judge

1 McGrath 722, 61 McGrath 35

• Court: Michigan Supreme Court
• Decided: April 20, 1886
• Status: Published

Opinion

To compel respondent to set aside an order vacating a decree and all proceedings subsequent to tbe issue of the subpoena.

Granted in part April 20, 1886.

The return day of the subpoena was of a date thirty days prior to that fixed in the original subpoena, and a decree pro confesso, for want of defendant’s appearance, was entered.

Held, that the return was not conclusive against defendants, nor was the service bad, but that the defect was an irregularity, which he could take advantage of by timely application to the court; that the return gave the court jurisdiction; that to constitute an enrollment under How. Stat., Sec. 6648-9, the papers must be attached.with the register’s certificate annexed, under seal of the court, and filed in his office; that a pro confesso decree, for want of defendant’s appearance, may be vacated after enrollment upon petition or motion, otherwise where an appearance has been entered, when a re-examination can only be had on bill of review (Maynard vs. Pereault, 30 M., 160); that relator had failed to show that he was ignorant of the true return day, and made no showing of merits, nor tendered an answer; that in such case, no facts existed authorizing the setting aside of the service or pro confesso, but that an order made vacating the report as to amount due, and the decree, was warranted upon the showing that complainant had not accounted for certain rents and profits.