Sprague v. Devens
Circuit Court of the 15th Circuit of Michigan
Certirari to Justice’s Court. The suit below was in replevin commenced by the defendant in error, by writ issued Dec. 2d, 1869, and made returnable Dec. 14th.
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Certirari to Justice’s Court. The suit below was in replevin commenced by the defendant in error, by writ issued Dec. 2d, 1869, and made returnable Dec. 14th. The bond given by the plaintiff below, under § 3695, C. L., was the penal sum of $50 Gnly, and not $100. The constable served the writ Dec. 2d, 1869, by replevying the property therein described, and by leaving a certified copy of the writ at the residence of the defendant, with a person of proper age, the defendant not being found, but in making his return of service omitted to specify therein the day when he served the writ. On the…
1Opinion of the Court
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…
2Cases cited9 opinions
- Homan v. BrinckerhoffCourt for the Trial of Impeachments and Correction of Errors · 1845
- Hawley v. BatesNew York Supreme Court · 1839
- Stewart v. SmithNew York Supreme Court · 1837
- Calender v. OlcottMichigan Supreme Court · 1849
- Milliken v. SelyeNew York Supreme Court · 1846
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