Smith v. Bresnahan

Sherwood, J.

This is an action of replevin, and was brought to recover the possession of property seized by the defendant, as sheriff of the county of Muskegon, by virtue of *348 an execution issued out of the circuit court of the county of Newaygo, upon a judgment in a case wherein Wellington Persons and Edward Edwards are plaintiffs, and the plaintiffs in this case are defendants.

Said suit was commenced by declaration, containing the common counts, copies of which were served upon all the defendants named therein by the sheriff of Muskegon county.

None of the defendants appeared in the case; all were defaulted, and their defaults made absolute.

The plaintiffs’ damages were assessed by the court, and judgment rendered thereon for the sum of $312.68 damages.

The validity of this judgment is the principal question presented in this case.

The record contains the following statement of the plaintiffs’ claim in that case, and for the amount of which the judgment appears to have been rendered :

Newaygo, Mich, November 22, 1883.

Messrs. Smith, Nims, Erwm db Hoyt, To Persons da Edwards, Dr, Proprietors of Abstracts of Newaygo County.

October 13, 1879. To giving owners’ names of 967 descriptions, at 25 cents per description, - $241 75

November 18, 1879. To search. - 1 00

$242 75

Int. from January 1, 1880, 4 yrs. 2 mos., and 10 days, at 7 per ct.,...... 70 93

$313 68

The plaintiffs claim that the Newaygo circuit court never obtained any jurisdiction in the case wherein the judgment was rendered upon which the execution issued under which the defendant makes defense; that it does not appear that the labor and services, for which the judgment was given, were rendered in the county of Newaygo, or that the defendants, or either of them, were ever residents thereof; that the circuit court for the county of Newaygo could not obtain jurisdiction over the persons of defendants by service of *349 declaration upon them in an adjoining county, except under the circumstances stated in How. Stat. § 7317. 1

The declaration contains the common counts, one of which is a count for work and labor; and it is averred therein that the work was done for the defendants, by the plaintiffs, in the village of Newaygo, in said county of Newaygo, and at their request, and there is no question but that the county of Muskegon adjoins that of Newaygo.

We think the record offered in evidence sufficiently shows that the work declared for, was performed in the county of N ewaygo, and that it was performed by the plaintiffs for the defendants; but it does not show that the plaintiffs were, at the time the suit was commenced, residents of the county of Newaygo. This was essential in order to confer jurisdiction upon the court to render judgment, when the service is made out of the county.

The defect is a jurisdictional one, and the judgment in the Newaygo circuit is therefore void, and furnished no justification for the sheriff, and the judgment of the circuit court must be affirmed with costs.

The other Justices concurred.

“Sec. 7317. The People of the Slate of Michigan enact, that in all actions for trespass on lands, or injuries to lands, or for the unlawful conversion of any crops, and in all actions wherein the demand shall be principally for labor or services performed by any individual,company, or commenced in any court of competent jurisdiction in the county wherein the lands may be situated, or wherein the labor or services were rendered or performed, or in which the plaintiff or plaintiffs reside, the process or declaration by which such action shall be commenced may be served in any county within.this State adjoining the county wherein such action shall be commenced, against any individual, company, or the proper officer of any corporation in this State: Provided, that if such service shall be made in any county other thau the county wherein such action shall be commenced, service shall be made by the sheriff or any constable of the county wherein service shall be made, or by any person authorized to make such service; but the officer making such service shall be entitled to travel fees only for the distance actually traveled within his own county in making such service, and he shall return the process or declaration by mail; and Provided, further, that in case any person shall [be] summoned into an adjoining county, and shall prevail in the suit, he shall recover as costs his actual expenses in defending the suit, but no attorney’s fee exceeding that now allowed by law; Provided, that the provisions of this act shall not be construed to apply to actions commenced before justices of the peace by any company or corporation.”