Sprague v. Devens

By the Court, Upson, J. By § 3692, C. L., the constable serving any process is required to “ return thereon, in writing, signed by him, the time and manner of executing the same,” and by § 3696, C. L., writs of replevin are required in Justices’ Court to be “ served not less than six days before the return thereof.’’ In this case the constable in the first instance omitted to state in his return the time of service, and under a similar statute in New York, where such omission occurred and the Justice rendered judgment in favor of the plaintiff, it was held fatal on certiorari, and the judgment was reversed; the return'of the certiorari still showing the same return of the officer on the writ of replevin. 2 Hill, 517; 17 Wend., 517. But it appears by the return now made to the writ of certiorari in this case, that on the next day after the rendition of the judgment, the constable, by leave of the Court, amended his return so that it gavé the actual time of service, and that it was served, as now appears, within the time required by law, This we think the constable might, with leave oí the Court, lawfully do under the statute, and that no advantage can now be taken of it. See §§ 4417, 4418, 4419 and 4422, C. L. Also — 14 Mich., 348,, and 1 Mich., 344 — service in either [238] mode — i. e., personally or by copy when property replevied— authorized the Justice to proceed with the case. Secs. 3699, 5016 and 5026, G L. But the bond in this case was defective, being in a penalty less than $100, as required by statute to authorize the Justice to issue the writ. Sec. 3695, O. L. This is'a material requisite to the obtaining jurisdiction, and in this proceeding is not amendable here — this being a hearing on certiorari and in another Court. 5 Mich., 33 and 511; 6 Mich., 69; 19 Maine, 219. That it is a material defect, see § 3695, C. L.; 2 Mich., 337; 3 Denio, 54; 1 Denio, 184; 20 Wend., 673; 19 Wend., 632; 18 Wend,, 521 and note. The judgment below must therefore be reversed, with costs, and restitution of the property replevied awarded. 1 Dong., Mich., Rep., 302.