Schloss v. Joslyn

Campbell, C. J.

Relators sued out and levied an attachment against the property of one David Ii. Silvers. They reside in Wayne county. He resides in Lenawee county, but had a store in Manchester, Washtenaw county, where the levy was made. He moved to dismiss the attachment as improperly obtained in Washtenaw, when he lived and had property in Lenawee. The judge of Washtenaw set theproceedings aside for that reason, and a mandamus is applied for to rescind this action.

The statute is express that the writ must.be sued out where one of the parties resides, if the debtor has property there. 1 That was made to appear in this case, but it was claimed to be incumbered so as to be worthless. But under our statutes *269 the equity of redemption is always available for possession until foreclosure, and in this case there was also some personal property which the judge, who passed upon the facts, may have found to be also subject to levy. The provision is jurisdictional, and is not without substantial importance.

Our statutes have always made it necessary to sue residents of the State in particular counties, and usually a man at his own home is in a better position to guard his interests, without great expense, than where he is summoned to defend himself elsewhere. In the present case the counties are near by, and the difference is not material. But the service might, if valid here, have been made in some remote county, where it would work hardship. We cannot make distinctions for particular cases. The law is imperative.

The ¿nandamus must be denied, with costs.

The other Justices concurred.

How. Stat. § 7986.

See Stringer v. Dean, 61 Mich. 196 , for a full discussion of this section, and the proper practice in taking advantage of a failure to comply with its provisions.