Nelson v. Hillen

Blair, J. On the 16th of April, A. D. 1909, Murie Nelson, as plaintiff, began a suit against John Hillen, as defendant, before Merton Hunt, a justice of the peace of the township of Fork, in the county of Mecosta, which was returnable April 24, 1909, at 10 o’clock a. m. This summons was personally served on the defendant Hillen at the township of Fork, in Mecosta county, on the 16th day of April, 1909, by William J. Dewey, a deputy sheriff. After the defendant was served with the summons, he consulted his counsel, whereupon and oh the 23d day of April, 1909, he filed with the justice a written motion to quash the proceedings upon the ground that the summons was a long summons and was served on him in Mecosta county, while he, the defendant Hillen, was not a resident of the county of Mecosta. This motion, together with the affidavits in support thereof showing de. [509] fendant’s nonresidence, was received by the justice by registered mail, April 23d, one day before the return day. On the return day, the justice rendered judgment in favor of plaintiff, and, the case having been removed to the circuit court by writ of certiorari, that court affirmed the judgment of the justice. Defendant asks a reversal of the judgment upon the ground that the summons, being a long summons, was void, gave the justice no jurisdiction, and his motion to quash should have been granted. The original return of the justice contains, among other. things, the following: “ And I do also certify that at the time and place above specified for the return of said summons, the said party, Murie Nelson, appeared, the defendant did not appear, said plaintiff declared against the defendant as follows: Plaintiff declares orally on all common counts, and especially on two promissory notes herewith filed with the court, and claims damages in the sum of two hundred dollars. And thereupon I proceeded to try the said cause. On the trial of said cause, Murie Nelson, a witness, sworn on the part of the plaintiff, and thereupon plaintiff rested his cause. After hearing the proofs and allegations of the plaintiff, I, the said justice, did forthwith render judgment in favor of the plaintiff, and against the defendant, for one hundred eighty-seven dollars damages, and two dollars and twenty-five cents costs, and, in further answer to the facts set forth in the copy of the affidavit on which the said writ of certiorari was allowed, I do further certify and return to the first allegation of error. I return that I issued a long summons in this cause at the request of the plaintiff. The second allegation of error I return I proceeded in the cause at the request of the plaintiff; he knowing that the summons was a long summons and that the defendant was a nonresident. To the third, fourth, and ninth allegations of error I return that I received the special appearance and motion of the defendant by registered mail to dismiss the cause and showed the same to the plaintiff, but I was unable to determine whether the defendant could appear otherwise than in person or by attorney. I therefore filed the special appearance in the cause, and did not enter same on docket or rule on it, and leave it to the honorable circuit court to say whether it [510] was an error or not. I knew and the plaintiff knew that the defendant was a nonresident of the county.” On September 22, 1909, and after the cause had been submitted, the justice made a further return as follows: “ The attorney for defendant has asked me for amended returns in the above cause. I, Merton Hunt, the justice referred to in the above cause, do further certify and return to the writ of certiorari in this cause, that the notice for the writ of said certiorari .was served on me within the five days, the suit was tried on the 24th day of April, 1909, and the writ was served on me the 27th day of April, 1909. In my return, I said the plaintiff knew and I knew that the defendant was a nonresident of Mecosta county, which was a mistake. I don’t know what the plaintiff knew in the matter, and there was no evidence to show that the defendant was a nonresident of Mecosta county. “ Given under my hand the 22d day of Sept., 1909. “Merton Hunt, “Justice of the Peace.” No order was made by the circuit judge for a further return, nor was any application made to him for that purpose. We agree with the plaintiff’s counsel that we cannot consider the amended return. The cause was submitted to the court and taken under advisement September 7th, and the amended return was not filed until September 24th, and, so far as this record discloses, was not considered by the court. If defendant desired a further return, he should have applied to the court for an order. Marquette, etc., Rolling Mill Co. v. Morgan, 41 Mich. 296 (1 N. W. 1045); Monroe v. Reynells, 131 Mich. 259 (90 N. W. 1065); Bernstein v. Thayer, 157 Mich. 625 (122 N. W. 365). It is further objected by plaintiff that without the amended return it does not appear that the notice of intention to remove the cause by writ of certiorari was served on the justice within the required five days. It does not appear that the plaintiff raised this question by motion to dismiss or otherwise, in which event the court [511] doubtless would have ordered a further return. Monroe v. Reynells, supra. We are of the opinion that the court erred in affirming the judgment. The filing of the written motion and affidavit of nonresidence was a special appearance. Wagner v. Kellogg, 93 Mich. 616 (52 N. W. 1017). The practice pursued was the proper practice to raise the question. Appleman v. Hahn, 149 Mich. 245 (112 N. W. 917); Waring v. McKinley, 62 Barb. (N. Y.) 612. The justice’s return is inconsistent with the claim that plaintiff’s testimony may have contradicted the defendant’s showing by affidavit. The facts shown by the return entitled defendant to an order granting his motion. The judgment is reversed and the proceedings quashed, but without prejudice to the right of the plaintiff to bring another suit. Ostrander, C. J., and Bird, Hooker, and Stone, JJ., concurred.