Soule v. Hough

8 N.W. 50, 45 Mich. 418, 1881 Mich. LEXIS 742

• Court: Michigan Supreme Court
• Decided: January 28, 1881
• Status: Published

Opinions

Campbell, J.

Soule sued Hough, for trespass, including an assault on his person, and the use of force in attempting to expel plaintiff and his family from their dwelling, and various acts of annoyance connected with the conduct in question.

Plaintiff was in possession under a party claiming title, and who actually owned it with a right of possession, unless cut off by foreclosure proceedings.

The testimony tended to show, and there is nothing contradicting it, that Hough, having got into the outer kitchen of Soule’s house through an open door, when no one was in the room, maintained possession of that, and attempted by force to get into the other part of the house, and failing in this, boarded up the premises and used violence and.threatened to kill Soule if he attempted to remove the obstructions.

The court in effect changed the jury that the entry into the kitchen gave Hough such possession as justified him, if having title, in boarding up the rest of the house, so as to keep it from being habitable, and that the assault and battery, if committed in an attempt in a reasonable and moderate manner to keep plaintiff from knocking off the boards was not actionable.

The doctrine that a party may make entry and hold possession of a part of premises, and thereby get constructive possession of the rest, so as to turn the tenant out if he can do it peaceably, though with some force, cannot be applicable to such a case as this. The house, so long as occupied by a tenant, is an entirety, and the wholesome rule of law which forbids forcible entry would be of very little use, if by getting a foothold in a single room or outbuilding, an intruder, with or without title, could be held to be in possession of the principal structure to the exclusion of the family in actual occupancy. Under the general rules of law the possession of the principal covers the incident, and possession of the incident does not control but is subordinate. A dwelling is too important a refuge to be destroyed by any such indirection. The case is in its main features not unlike though much worse than Seitz v. Miles 16 Mich. 456; and the testimony indicates a great outrage. The jury could not under the charge have regarded the chief elements of damage.

The foreclosure proceedings, which, although pertinent, could not if regular have justified defendant’s conduct, are claimed to have been invalid for any such purpose, or for any purpose. . They were begun on the 16th of June, 1859, by James P. Scott against Lucy Piquette, Francis Piquette, and George Pedfield, in the circuit court for the county of Ottawa. Lucy Piquette was owner of the land mortgaged. The decree was made by default against ber and her husband on publication, and not on service of process. The sale was made and report filed in August, 1860. No order of confirmation appears in the record, but it is recited as an order entered in the common-rule book in January, 1880, after this suit was brought, and only a few days before trial. We shall make no remark upon this, as possibly it is an error, and the case will not require it.

On the 16th of June, 1859, a subpoena was issued returnable on the 29th. On the 25th of June, which was less than ten daj^s from its issue, and when it could not have been made legally returnable (Rule 9), the sheriff of Ottawa county made return on oath that he had served the writ on Redfield, but was unable to find the other defendants, and was informed and believed they did not reside in this State.

On June 30, 1859, complainant made an affidavit before a justice of the peace, setting out “that Lucy Piquette and Francis Piquette are residents of this State; that subpoena for their appearance has been issued in the above entitled cause, returnable on the 29th day of June instant, and that the same could not be served on the said Lucy Piquette and Francis Piquette by reason of their absence from the State of Michigan.” On this, an order of publication was made by a circuit court commissioner.

The statute which is relied on to sustain this proceeding is section 5116 of the Compiled Laws, which authorizes such an order “ when the defendant is a resident of this State, upon proof by affidavit that the process for his appearance has been duly issued, and that the same could not be served by reason of his absence from or concealment within this State, or by reason of his continued absence from his place of residence.”

The statute is very clear that the cause for issuing the order of publication must be made out by jproof, and this must come from some one who testifies on his own responsibility. And, according to the well-recognized rules of procedure, the process must be issued and diligent efforts made to serve it during its entire time allowed for service, and there must be a responsible showing why it was not served.

In this case the process was returned four days before its return-day, and the officer makes no showing of diligence before this, and no one makes any showing of diligence at all afterwards. There is a conflict of fact between the return and affidavit as to the cause of non-service. It was not possible that the complainant, who had no part in the service, could swear of his own knowledge to any diligence, and in the case of residents of the State, the issue and return of process is imperative, and here there was no lawful return of not found. It is not due diligence to make no effort to serve a writ so long as service can be lawfully made.

The rule of diligence in cases where the disability must be extended to the whole State and not a county was referred to in Merrill v. Montgomery 25 Mich. 78. The statute was never designed to encourage getting constructive service on a merely temporary absence, and the affidavit should leave nothing ambiguous as to the diligence used to find the parties. As a matter of fact there can usually be no difficulty generally in finding residents within a reasonable time ; and the court ought to have a sufficiently responsible showing to guide it in determining whether a case is fully made out. The English statute, which was intended chiefly, if not entirely, to reach residents who were absent, was construed in Burton v. Maloon, Barnardiston p. 401, as requiring a positive showing, and the New York court of chancery in Evarts v. Becker 8 Paige 506, is to the same effect.

We think the present showing cannot be upheld on any ground as sufficient.

The judgment must be reversed with costs and a new trial granted.

Graves, J. and Marston, C. J. concurred.