O'Hara v. McEnny

Circuit Court of the 22nd Circuit of Michigan

O'Hara v. McEnny

2 Mich. N.P. 164

CourtCircuit Court of the 22nd Circuit of Michigan

DecidedMarch 15, 1871

StatusPublished

This text of 2 Mich. N.P. 164 (O'Hara v. McEnny) is published on Counsel Stack Legal Research, covering Circuit Court of the 22nd Circuit of Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

O'Hara v. McEnny, 2 Mich. N.P. 164 (Mich. Super. Ct. 1871).

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Opinion

By the Court,

Brown, -J.

The statute requires the officer serving the attachment to serve a copy of the writ and inventory upon the defendant if he can be found in the county; if not so found, to leave such copies at the last place of residence •f the defendant, if there be any such place in the county, and if not, then by'leaving the same with any person in whose possession the goods may be found. O. L., § § 3679, 3680.

If the defendant could be found in the county it was the duty of the officer to make personal servive; if he could not be so found that fact should appear in the return. The return shows, by implication at least, that there was such a place as defendant’s last place of residence within the county. If then personal service could not be had by reason of the defendant’s absence, it was the duty of the officer to have left certified copies of the writ and inventory at such last place of residence ; and the. fact that he could find no person there with whom to leave his papers is no excuse for a non-compliance with the requirements of the statute.

It is clear that the service of these certified copies, in one or the other of the modes required by law, is íequisite to constitute a complete and' perfect service of the attachment. 2 Wait's Law & Prac., (2d Ed.,) 174. And as there was no personal or substituted service, no jurisdiction was acquired over the person of the defendant by virtue of any act of the officer who attempted to serve the process.

The defendant, by his authorized attorney, caused his appearance to be entered, pursuant to the provisions of § 3685, C. L., and demanded a trial. The plaintiff had already filed his declaration. If the appearance of the defendant was a general appearance he thereby subjected his person to the jurisdiction of the Court. It is well settled that all appearances are to [167]*167be taken as general, unless at the time of entering such appearance, the party expressly specifies his appearance to he for some special purpose other than for contesting the cause on its merits. Here the defendant appeared and demanded a trial, thereby presenting an issue on the merits. Whether such appearance conferred jurisdiction over the property of the defendant is quite another question, arid one I am not now asked to decide. See Watt vs. Willett, 2 Hilt., 212; and see contra, 15 Ohio, 435.

The Justice was not called upon to order the discharge of the property, but to dismiss the cause. The defendant, having subjected his person to the jurisdiction of the Justice, his motion came too late.

The judgment of the Court below must be affirmed with costs.

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By the Court,

Brown, -J.

The statute requires the officer serving the attachment to serve a copy of the writ and inventory upon the defendant if he can be found in the county; if not so found, to leave such copies at the last place of residence •f the defendant, if there be any such place in the county, and if not, then by'leaving the same with any person in whose possession the goods may be found. O. L., § § 3679, 3680.

If the defendant could be found in the county it was the duty of the officer to make personal servive; if he could not be so found that fact should appear in the return. The return shows, by implication at least, that there was such a place as defendant’s last place of residence within the county. If then personal service could not be had by reason of the defendant’s absence, it was the duty of the officer to have left certified copies of the writ and inventory at such last place of residence ; and the. fact that he could find no person there with whom to leave his papers is no excuse for a non-compliance with the requirements of the statute.

It is clear that the service of these certified copies, in one or the other of the modes required by law, is íequisite to constitute a complete and' perfect service of the attachment. 2 Wait's Law & Prac., (2d Ed.,) 174. And as there was no personal or substituted service, no jurisdiction was acquired over the person of the defendant by virtue of any act of the officer who attempted to serve the process.

The defendant, by his authorized attorney, caused his appearance to be entered, pursuant to the provisions of § 3685, C. L., and demanded a trial. The plaintiff had already filed his declaration. If the appearance of the defendant was a general appearance he thereby subjected his person to the jurisdiction of the Court. It is well settled that all appearances are to [167]*167be taken as general, unless at the time of entering such appearance, the party expressly specifies his appearance to he for some special purpose other than for contesting the cause on its merits. Here the defendant appeared and demanded a trial, thereby presenting an issue on the merits. Whether such appearance conferred jurisdiction over the property of the defendant is quite another question, arid one I am not now asked to decide. See Watt vs. Willett, 2 Hilt., 212; and see contra, 15 Ohio, 435.

The Justice was not called upon to order the discharge of the property, but to dismiss the cause. The defendant, having subjected his person to the jurisdiction of the Justice, his motion came too late.

The judgment of the Court below must be affirmed with costs.

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2 Mich. N.P. 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohara-v-mcenny-micirct22-1871.

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