Wolf v. Cohen

McDonald, J. The defendant has brought error to review a circuit court judgment in an action of summary proceedings for the restitution of certain premises. The only question involved is the jurisdiction of the court. There was no personal service of the summons issued by the circuit court commissioner. Where personal service is not obtained, Act No. 257, Pub. Acts 1925 (3 Comp. Laws 1929, § 14978), provides for the publication of an order for appearance and the mailing of a copy thereof by registered mail to the defendant’s last known place of residence. It also provides for proof of mailing by affidavit to which shall be attached a return receipt *693 if one has been received. In this case no receipt was attached to the affidavit, and it is not stated that one was received. Because of this defect in the affidavit, the defendant appeared specially before the circuit court commissioner and moved to dismiss for lack of jurisdiction. The motion was denied and from the judgment entered the defendant took a general and special appeal to the circuit court. There the motion was renewed and denied. No defense to the merits was offered, and judgment was entered for the plaintiffs. The general appeal to the circuit court was in effect a general appearance and conferred jurisdiction. Lapham v. Tarabusi, 247 Mich. 380. The statute providing for appeals from the justice’s court governs appeals from a circuit court commissioner. 3 Comp. Laws 1915, § 13252 (3 Comp. Laws 1929, § 14987). In a.special appeal from the judgment of a justice’s court, objections to jurisdiction must be specifically set forth in the affidavit. If stated too generally, they will not be considered by the appellate court; Osborne v. Osborne, 156 Mich. 413; 3 Comp. Laws 1915, § 14402 (3 Comp. Laws 1929, § 16224). In the instant case, the affidavit on which the special appeal is based does not allege any errors in the proceedings before the commissioner. It is general and relates only to the judgment on the merits. No objections to the jurisdiction were stated. There was nothing before the appellate court except a retrial of the case on its merits. The judgment is affirmed, with costs to the plaintiffs. Butzel, C. J., and Wiest, Clark, Potter, Sharpe, North, and Fead, JJ., concurred.