Crozier v. Allen

Grant, C. J. This suit is brought to recover treble damages, under section 8306, 2 How. Stat. Defendant failed to pay rent when due. Notice to quit was served September 4th. He did not surrender possession. Plaintiffs on September 12th commenced summary proceedings to eject him. Summons was issued on the 12th, returnable the 17th. The officer, being unable to find the defendant, served the summons on Thursday, the 13th, by leaving a true copy of the same at his usual place of abode, in the manner provided by the statute, and made his return the same day. Defendant did not appear on the return day, and judgment for restitution was rendered. On the 17th [172] and 18th of September, defendant removed his goods from the store, but did not surrender possession till the 27th. The court rendered judgment for the defendant. Sunday intervened between the day of service and the day for appearance. The statute requires that the summons be served “at least two days before the time of appearance mentioned therein.” 2 How. Stat. § 8298. The service was void, and gave the commissioner no jurisdiction. Chaddock v. Barry, 93 Mich. 542 (18 L. R. A. 337). The language of the statute in the two cases is identical. Both parties concede that Sunday, the 16th, is to be excluded from the computation. Substituted service could not have been made till the 14th. Judgment affirmed. The other Justices concurred.