Hall v. Shank

Sherwood, J.

The defendant was sheriff of the county of Osceola in 1884. The plaintiff brings replevin for property taken by the sheriff upon an execution issued in the circuit court of Kent county upon the transcript of a judgment rendered by a justice of the peace in the city of Grand Rapids, in favor of George L. Sampson and Frank D. 'Black, against the plaintiff, Ambrose 0. Kies, and John Hall, defendants, for the sum of $173.88. The plaintiff claims that the justice had no jurisdiction in the case, and that the judgment, from which the transcript was taken, was void, and that no lawful execution could be issued thereon. The main facts in the case are uncontroverted, and from them it appears that when the suit was commenced before the magistrate, none of the parties were residents of the county of Kent, and personal service of the summons was had upon the plaintiff alone; that on the return-day of the summons (the 31st day of March, 1883) none of the defendants appeared, and the justice adjourned the cause upon his own motion until the 5th day of April, at nine o’clock a. m. following, at which time, the defendants not appearing, the plaintiff proceeded in the case and took the judgment, upon which, and the transcript therefrom, the execution under which the sheriff seeks to justify, was issued.

Upon the foregoing facts, the circuit judge held that the *38 justice obtained no jurisdiction of the person or property of the plaintiff, and that the judgment rendered was therefore void, and directed a verdict for the plaintiff. We think this direction by the circuit judge was right. Certainly, the justice had no power to adjourn the case under the facts stated upon his own motion, and when he did so he lost jurisdiction of the subject matter. How. Stat. § 6903; Stadler v. Moors 9 Mich. 264 ; Harrison v. Sager 27 Mich. 476 ; Brady v. Taber 29 Mich. 199 .

It is not competent under How. Stat. §6819 for a plaintiff to'sue a defendant in a justice’s court, where they are both residents of this State, in a county where neither of them reside; but where either is a non-resident of the county, suit may be brought before any justice, in any township of the county, where the other resides, and may at the time happen to be, and the court has jurisdiction only in those cases in which the plaintiffs, or some one of them, or the defendants, or some one of them, are resident in the county where the suit was brought.

The judgment of Judge Montgomery upon the facts appearing in the record was correct, and must be affirmed.

The other Justices concurred.