Ricaby v. Gentle

80 N.W. 1093, 122 Mich. 336, 1899 Mich. LEXIS 700

• Court: Michigan Supreme Court
• Decided: December 12, 1899
• Status: Published

Opinion

Per Curiam.

The provisions of the statute are as follows (3 Comp. Laws 1897, § 9738) :

“If, in any action duly commenced within the time limited in this chapter and allowed therefor, the writ or declaration shall fail of a sufficient service or return by any unavoidable accident, or by any default or neglect of the officer to whom it is committed, or if the writ be abated or the action otherwise avoided or defeated by the death of any party thereto, or for any matter of form, or if, after a verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on a writ of error, the plaintiff may commence a new action for the same cause at any time within one' year after the abatement or other determination of the original suit, or after the reversal of the judgment, therein; and if the cause of action does by law survive, his executor or administrator may, in case of his death, commence such new action within the said one year.”

The court found that the officer was guilty of negligence in not returning the original summons. This being so, the statute would be meaningless unless- the judgment were sustained. We think the court arrived at the correct conclusion, and the judgment is affirmed.