Savidge v. Circuit Judge

1 McGrath 102, 105 McGrath 257

• Court: Michigan Supreme Court
• Decided: May 21, 1895
• Docket: No. 14499
• Status: Published

Opinion

To compel respondent to set aside an order vacating a judgment in a case commenced by attachment, ánd dismiss the writ.

Denied May 21, 1895, -with costs.

Writ of attachment issued returnable January 3, 1893. No personal service, publication made, the last being made February 9, 1893. Proof of publication made and declaration filed February 16, 1893. Default entered March 16, 1893. No affidavit of the commencement of publication was filed. April 16, 1893, property sold, bid in by plaintiff and passed out of the officers’ hands into plaintiff’s possession. May 6,1891, the court vacated the judgment and dismissed the writ.

Respondent insisted that the judgment was void because the default was entered within thirty days after the filing of proof of publication, citing — Woolkins vs. Haid, 49 M., 299; Sture vs. Vanderberg, 67 M., 530; King vs. Harrington, 14 M., 532; Wells vs. Walsh, 25 M., 344; Nugent vs. Nugent, 70 M., 52; that the basis of the existence of the proceeding was the attachment of the property and its possession by the sheriff; that when the property was discharged from the levy by the voluntary act of the officer it could not be reclaimed by him, citing Weber vs. Henry, 16 M., 403; Waples on Attachment, pp. 7, 8, 9.