Torrans v. Hicks

Cooley, J: The questions in this ease relate to the validity of foreclosure proceedings, under which defendant claimed title. 1. It is objected that the subpoena was not properly attested, it being- signed by a deputy of the register, instead of the register himself, and the deputy, as is claimed, not being an officer known to the law. But -if there is any thing in this, it was a mere irregularity, and does not go to the jurisdiction. And in this case the subpoena not being served is of no importance. 2. Torrans, the defendant, in the foreclosure proceedings, was proceeded against as a resident upon whom service could not be made by reason*of his absence from the state. It is objected that there was no sufficient proof of the inability to make service upon him. The proof consisted of a subpoena returned prematurely, and an affidavit of complainant’s solicitor, made upon his own knowledge, that Torrans was a resident of Muskegon county, and that he left his residence some four months before and had not returned, and that subpoena could not be served upon him by reason of his absence. This affidavit was sufficient, irrespective of the attempt to make service of the subpoena. 3. What purports to be an affidavit of publication of the order for the appearance of the defendant is signed by Charles II. Lee, but it begins by the recital that “Fred. B. Lee, of said county, being- duly sworn,” etc. This, it is claimed, is a mere nullity. If it is the affidavit of Fred. B. Lee, it is a nullity, because he does not sign or swear to it; and if it is the affidavit of Charles II. Lee, it is equally invalid, because the recitals in it relate to Fred. B. Lee, and not to Charles II. Lee. We think, however, that the recital of the name of Fred. B. Lee in the beginning of the affidavit is apparently a clerical error, and to be overlooked as such. Charles II. Lee makes the oath, and had the name been omitted in the beginning, there would have been no difficulty in holding that the affiant was applying the facts recited to himself. But this affidavit is in legal [310] effect the same, we tliink, that it would have been if in the body of it there had been no recital of any name as that of an affiant. 4. The affidavit on which the order pro confesso was entered was filed three days after that order. This was an irregularity, but as the proof was filed before the decree was made, there was no want of authority to make the decree. 5. Some criticism is made upon an order of confirmation of the sale which was entered in the case. It was the usual order nisi, and was .sufficient, if any order is requisite in a case where the defendant has not appeared. That is a question which does not arise here. C. The affidavits in the case are all signed by the deputy register. These are said to be void. The deputy register holds that position by virtue of being deputy clerk. The deputy clerk is an officer known to the law and entitled as such to administer oaths. The subscription deputy register, instead of deputy cleric, may well be regarded as a mere mistake in the legal designation of his office. We do not concede, however, that the deputy of the register is not, as such, a legal official. The judgment must be affirmed, with costs. The other Justices concurred.