Scudder v. Wilcox

1 Mich. N.P. 35

• Court: Circuit Court of the 48th Circuit of Michigan
• Decided: October 15, 1869
• Status: Published

Opinion

Brown, J.

The notice having been published within thirty days after the “return day ” mentioned in the writ, the requirements of the statute were complied with.

On the argament, counsel contended that if the “ return day,” instead of the actual return of the writ, was to govern the time of advertising, then the actual return in this case, was premature, and all subsequent proceedings unauthorized.

There is, doubtless, much force in this suggestion; for, personal service should be had if possible, and a substituted service, by advertisement, is only to be resorted to when the person of the debtor cannot be reached by process.

As the writ, in contemplation of law, is not to be considered as returned, until the “ return day ” thereof, if the defendant should come within the officer’s bailiwick, before that-time, it would be the duty of such officer to serve his' writ; and though he may have actually deposited it with the Clerk, I caff see no reason why he might not, in such case, take it again for service. However, the better — if Dot the only correct — practice, is, for the officer to retain the actual possession of the writ until the return day.

Motion denied.