Woodmansie v. Hollon
Michigan Supreme Court
Error to Calhoun Circuit. This was a. motion to dismiss for want of prosecution. The writ was sued out January 17, 1868, and returnable February 18, following.
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Error to Calhoun Circuit. This was a. motion to dismiss for want of prosecution. The writ was sued out January 17, 1868, and returnable February 18, following. But the return was not made and filed till February 21. Notice of the issuing of said writ was served on defendant below, January 17, as follows: “Please take notice that a writ of error, duly issued by the Supreme Court of the State of Michigan, has been served upon the clerk of the Circuit Court for the county of Calhoun, and a bond duly filed with .said clerk, duly executed, etc.” It appeared that the defendant’s attorney saw and…
1Opinion of the Court
The court
held that inasmuch as he had knowledge of the writ and of its tenor and contents, the defendant in error had all the information that he would have received from a technical notice; and also that the filing of the return before the motion was heard would prevent the dismissal of the writ according to the usual practice.
But, inasmuch as notice of the motion to dismiss was given before the filing of the return, and when there had been a failure to comply with the rules, costs were allowed to the moving party notwithstanding the subsequent filing defeated the motion.
2Cited by1 opinion
- Hill v. HillMichigan Supreme Court · 1897