Percival v. Tucker

Circuit Court of the 36th Circuit of Michigan

Percival v. Tucker

2 Mich. N.P. 219

CourtCircuit Court of the 36th Circuit of Michigan

DecidedAugust 15, 1871

StatusPublished

This text of 2 Mich. N.P. 219 (Percival v. Tucker) is published on Counsel Stack Legal Research, covering Circuit Court of the 36th Circuit of Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Percival v. Tucker, 2 Mich. N.P. 219 (Mich. Super. Ct. 1871).

Pincite

Opinion

By the Court,

Brows, J.

Of the nine assignments of error ■urged as grounds for a reversal of the judgment in this cgse, it is only necessary to'consider the second, which raises the question of the Justice’s jurisdiction.

It is well settled that in this class of eases the requirements of the statute must be complied with in order to confer jurisdiction. The statute, §.3680, C. ¿..provides that, “ If the defendant cannot be found within the county, the constable.shall leave' a copy of the attachment and inventory certified by him, at the last place of residence of the defendant, if there be any such place within the county, and if not, then by leaving the same with any person in whose possession such goods and chattels, moneys and effects, may be found."

The return of the officer shows that the writ was left' with the person in whose possession the goods were found. If the defendant could be found in the county the service should have been upon him; if not, then by leaving the writ and inventory at his last place of residence, if there be any such place in the county; if the defendant cannot be'found in the county, and if there be no such place as his last place of residence ' in the county, the officer may serve the writ and inventory upon the person in whose possession the goods were found ; and this latter mode of serviee can be made legally only when neither of the other modes of service can be effected. This being so, the return of the officer should have shown affirmatively that neitber of the first two modes of serviee could be made.' In the absence of such return the Justice, was not warranted in retaining jurisdiction. See 18 Wis., 397; 9 Id., 342; 19 Mich., 78; 2 Hilt., 212; 15 Ohio, 435; 2 Wait's Law & Prac., (2d Ed.,) 174; 2 Mich. Nisi Prius, 164.

The judgment of the Court beiow must be reversed, with costs to plaintiff in error.

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By the Court,

Brows, J.

Of the nine assignments of error ■urged as grounds for a reversal of the judgment in this cgse, it is only necessary to'consider the second, which raises the question of the Justice’s jurisdiction.

It is well settled that in this class of eases the requirements of the statute must be complied with in order to confer jurisdiction. The statute, §.3680, C. ¿..provides that, “ If the defendant cannot be found within the county, the constable.shall leave' a copy of the attachment and inventory certified by him, at the last place of residence of the defendant, if there be any such place within the county, and if not, then by leaving the same with any person in whose possession such goods and chattels, moneys and effects, may be found."

The return of the officer shows that the writ was left' with the person in whose possession the goods were found. If the defendant could be found in the county the service should have been upon him; if not, then by leaving the writ and inventory at his last place of residence, if there be any such place in the county; if the defendant cannot be'found in the county, and if there be no such place as his last place of residence ' in the county, the officer may serve the writ and inventory upon the person in whose possession the goods were found ; and this latter mode of serviee can be made legally only when neither of the other modes of service can be effected. This being so, the return of the officer should have shown affirmatively that neitber of the first two modes of serviee could be made.' In the absence of such return the Justice, was not warranted in retaining jurisdiction. See 18 Wis., 397; 9 Id., 342; 19 Mich., 78; 2 Hilt., 212; 15 Ohio, 435; 2 Wait's Law & Prac., (2d Ed.,) 174; 2 Mich. Nisi Prius, 164.

The judgment of the Court beiow must be reversed, with costs to plaintiff in error.

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Bluebook (online)

2 Mich. N.P. 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/percival-v-tucker-micirct36-1871.

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