Union Mutual Fire Insurance v. Page

Champlin, J. .Plaintiff commenced suit against defendant in justice’s court by summons directed “to any constable of said county, or other competent person.” The summons - was served by N. Ii. Coleman, who does not appear to have been a constable, who made affidavit of service. No authorization or authority for him to serve the summons was. indorsed on the writ. The defendant appeared specially, and objected to the jurisdiction, among other reasons, because the person who served the summons in the cause was at the time of such service interested in the result of the suit; and, in support of the objection, she filed her affidavit to the effect that the suit was brought to collect an assessment laid by the company for payment of losses and other liabilities and expenses of the company, and for the collection of ten per cent, of said assessment, to be paid to the secretary and treasurer of said company for his services in making collections; that [76] Nelson H. Coleman was secretary and treasurer of said company, and was such when -he served the summons, and was at that time directly interested in the result of' the suit. ■ The justice overruled the objection, and defendant refused to plead, and withdrew from the case. The plaintiff obtained a judgment, and defendant brought the case by certiorari to the circuit court, where the judgment was reversed. Plaintiff brings the case here by writ of error. The justice, in his return, upon this point says: “ Before issuing the summons in said cause, N. H. Coleman was sworn before me as to his competency to serve the same, and said he was of lawful age, and a citizen of the State, and a resident of the city of Grand Kapids, and that he had no direct interest in the result of said suit; that he was at work for said company by the day, for wages. lie gave no evidence upon the subject of whether or not he held any office in said company at the time. Nothing was then testified to about his being secretary or treasurer of said company.” This showing, upon the face of it, does not show Coleman to be a competent person. The statement, “ that he had no direct interest in the result of said suit,” left an inference that, indirectly, he was interested. The statute requires that he shall not be interested in the suit; This statement was taken before the smnmons was issued. On the return-day proof by affidavit was filed, showing not only that Coleman was interested in the suit, but that he Avas an officer of the corporation. It was the duty of the justice to investigate and determine the truth of these charges; and without contradiction or investigation, and adverse determination, they must be taken as true, and he Avas completely ousted of jurisdiction. That he never acquired jurisdiction because Coleman’s authority to serve the summons was not indorsed on such process was fully discussed and decided in the case of Rasch v. Moore, 57 Mich. 56. The judgment must be affirmed, with costs of both courts. Campbell, C. J., and Sherwood, J., concurred. Morse, J., did not sit.