Wilcke v. Duross

107 N.W. 907, 144 Mich. 243, 1906 Mich. LEXIS 1033

• Court: Michigan Supreme Court
• Decided: May 24, 1906
• Docket: Docket No. 171
• Status: Published

Opinion

Montgomery, J.

The defendants Duross and Weber instituted a suit in justice’s court to recover of complainant a demand of $65.47. A return of a constable showed service upon complainant. Duross and Weber proceeded, to take judgment for their claim and costs, and later took a transcript to the circuit court, caused execution to be issued, and placed in the hands of defendant Dickson, as sheriff, who levied the same upon property of complainant of the value of $2,000 or more. Complainant thereupon served notice on Duross and Weber, and also upon the sheriff, stating that the judgment was void for the want, of personal service upon her.

Complainant soon after filed this bill setting up the above facts, and also that she had a just and meritorious defense to the claim of Duross and Weber as she was advised by counsel. She prayed that the judgment be set aside and for general relief. An issue was made upon the question of service, and the answer also contained a demurrer clause.

The circuit judge in his opinion found the facts as follows :

“Through error on the part of the constable, the summons of the said cause was served upon the daughter of the said complainant, a person by the same name as the complainant. The complainant was informed by her daughter of the service upon her of the said summons on the evening of the service thereof. It appears that the complainant consulted with an attorney, and was advised to pay no attention to the said suit. Complainant was kept advised of the progress of the suit by the attorney; knew of its pendency, and knew that judgment had been entered against her, and took no steps whatever to protect her rights or guard her interests. Some time during the fall of 1904 levy was made upon her real estate in the city of Detroit, and she thereupon filed this bill: ”

but refused relief on the authority of Finn v. Adams, 138 Mich. 258.

The circuit judge in applying that case proceeded upon the understanding that the judgment there involved was void. This is a mistake. That judgment was admittedly good at law, and it was sought to set up equitable grounds cf attack. In this case no jurisdiction was obtained to render judgment as against complainant. That a remedy exists in equity to relieve against such a judgment in a proper case cannot be doubted. 2 Freeman on Judgments (4th Ed.), § 495.

The objection that $100 is not involved is answered by the fact that one purpose of the bill is to relieve property of much greater value from a cloud. Matteson v. Matteson, 132 Mich. 516.

Certioiari would not have been an appropriate remedy, as no return would have disclosed the true facts. O'Connor v. White, 124 Mich. 22.

The complainant was entitled to relief. The testimony shows, however, that complainant knew of the service on her daughter on the day it was made, that an attorney was consulted on her behalf at once, and that instead of appearing and making objection she permitted the case to proceed to judgment, and permitted the transcript to be sued out, and permitted the levy to be made before taking any proceedings. While we cannot say that she by her inaction conferred jurisdiction upon the justice, we do-hold that when one voluntarily chooses a remedy which is designed or the necessary effect of which is to impose-large costs upon his adversary, when a simple, inexpensive remedy is open, the court will, in the exercise of its discretion as to costs, take into account the oppressive conduct of the complainant.

The decree will be entered for complainant, but without costs of the lower court, and for actual disbursements only in this court, exclusive of a solicitor’s fee.

McAlvay, Grant, Blair, and Moore, JJ., concurred.