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her and her husband on publication, and not on service of process. The sale was made and report filed in August, 1860. No order of confirmation appears in the record, but it is recited as an order entered in the common-rule book in January, 1880, after this suit was brought, and only a few days before trial. We shall make no remark upon this, as possibly it is an error, and the case will not require it.

On the 16th of June, 1859, a subpoena was issued returnable on the 29th. On the 25th of June, which was less than ten days from its issue, and when it could not have been made legally returnable (Rule 9), the sheriff of Ottawa county made return on oath that he had served the writ on Redfield, but was unable to find the other defendants, and was informed and believed they did not reside in this State.

On June 30, 1859, complainant made an affidavit before a justice of the peace, setting out "that Lucy Piquette and Francis Piquette are residents of this State; that subpoena for their appearance has been issued in the above entitled cause, returnable on the 29th day of June instant, and that the same could not be served on the said Lucy Piquette and Francis Piquette by reason of their absence from the State of Michigan." On this, an order of publication was made by a circuit court commissioner.

The statute which is relied on to sustain this proceeding is section 5116 of the Compiled Laws, which authorizes such an order "when the defendant is a resident of this State, upon proof by affidavit that the process for his appearance has been duly issued, and that the same could not be served by reason of his absence from or concealment within this State, or by reason of his continued absence from his place of residence."

The statute is very clear that the cause for issuing the order of publication must be made out by proof, and this must come from some one who testifies on his own responsibility. And, according to the well-recognized rules of procedure, the process must be issued and diligent efforts made to serve it during its entire time allowed for service, and there must be a responsible showing why it was not served.

In this case the process was returned four days before its return-day, and the officer makes no showing of diligence before this, and no one makes any showing of diligence at all afterwards. There is a conflict of fact between the return and affidavit as to the cause of non-service. It was not possible that the complainant, who had no part in the service, could swear of his own knowledge to any diligence, and in the case of residents of the State, the issue and return of process is imperative, and here there was no lawful return of not found. It is not due diligence to make no effort to serve a writ so long as service can be lawfully made.

The rule of diligence in cases where the disability must be extended to the whole State and not a county was referred to in Merrill v. Montgomery 25 Mich. 73. The statute was never designed to encourage getting constructive service on a merely temporary absence, and the affidavit should leave nothing ambiguous as to the diligence used to find the parties. As a matter of fact there can usually be no difficulty generally in finding residents within a reasonable time; and the court ought to have a sufficiently responsible showing to guide it in determining whether a case is fully made out. The English statute, which was intended chiefly, if not entirely, to reach residents who were absent, was construed in Burton v. Maloon, Barnardiston p. 401, as requiring a positive showing, and the New York court of chancery in Evarts v. Becker 8 Paige 506, is to the same effect.

We think the present showing cannot be upheld on any ground as sufficient.

The judgment must be reversed with costs and a new trial granted.

GRAVES, J. and MARSTON, C. J. concurred.

COOLEY, J., dissenting. An accidental circumstance having deprived me of the opportunity to explain my views when this case was decided, I should not deem it important. to do so afterwards were it not that I think a very serious error has been committed which will not merely be injurious in this case, but will be destructive of many titles.

The suit was in trespass, and the main purpose in instituting it probably was to determine the title to certain lands. Hough claimed to be in possession claiming a right to occupy under an insurance company whose title was traced through a chancery foreclosure in a suit in which James P. Scott was. complainant and Lucy Piquette, Francis Piquette and George Redfield were defendants. Lucy Piquette was mortgagor, and she and Francis Piquette were proceeded against as nonresidents. The majority of the Court has determined that these proceedings were fatally defective, because the Piquettes were never properly brought in.

The proceedings were twenty years old when the suit was brought, and we are not informed that the validity of the foreclosure was ever questioned before. The fact is not important except as it brings forcibly before us the danger of over-nicety in criticising judicial proceedings; because they may be questioned after sixty years as well as after twenty, unless actual and continued possession has perfected a title under the statute of limitations. And if I am correct in my opinion that the proceedings were in conformity to the law, the error is emphasized and made more mischievous by the lapse of time.

I do not understand that any defect is pointed out except that the subpoena which was issued for service on the Piquettes was returned not served before the return-day had arrived. This appears to me a wholly unimportant fact. The statute makes no requirement upon the subject except that there shall be proof by affidavit that the process issued could not be served by reason of the absence of the defendant from the State. The officer's return does not necessarily show this, nor is it necessarily shown by his affidavit. Indeed, it is not essential that the writ be placed in the hands of an officer at all; any one may serve it, if service is practicable, and any one may show the impracticability of making service when such is the fact. I cannot think it possible that it was ever intended jurisdiction of a case should depend upon a circumstance so entirely unimportant as that a subpoena which could not be served was left in the register's office before its

return-day, instead of being kept in the office of the sheriff or of the party.

The proof by the affidavit of the complainant that the subpoena could not be served on defendants by reason of their absence from the State, is full and complete, and is made after the return-day of process was passed. As the averment is made in positive terms, we must take it as made on personal knowledge of the facts. We have no right to infer that the affiant did not know the facts as fully as the officer; but even if we could, it would be unimportant, for it was for the court which acted upon the proof and made the order for publication, to decide upon its sufficiency; no one can deny that the affidavit was "proof," so that a case was made calling for judicial action. If so, the order of publication cannot be held void without disregarding the authorities. Brittain v. Kinnaird 1 B. & B. 432; Basten v. Carew 3 B. & C. 649; Sheldon v. Wright 5 N. Y. 497; Porter v. Purdy 29 N. Y. 106; Sitzman v. Pacquette 13 Wis. 291; Florentine v. Barton 2 Wall. 211. We need not go for the principle further than to Facey v. Fuller 13 Mich. 527 and Wall v. Trumbull 16 Mich. 228, which fully cover it. But the case of Pettiford v. Zoellner, ante, p. 358, decided with the principal case, seems to me authority more than ample for my views; for it was there held that an affidavit based on information and belief, without disclosing the source of the information, was sufficient. But surely an oath to hearsay cannot be "proof" and an oath to actual knowledge not proof, especially when the source of the hearsay is not given so as to impose upon the party making the affidavit some feeling of responsibility to the criminal laws. There could be no doubt, I think, which "proof" a careful judge would consider most trustworthy.

But the real jurisdictional fact in these cases is the fact which, when shown by proof, authorizes the court to make the order of publication. Pennoyer v. Neff 95 U. S. 714. There is little danger, therefore, of any wrong being done by an order of publication being made unadvisedly. If a party is proceeded against as a non-resident when in fact he

has a domicile within the State, he is entitled as of right to have the proceedings set aside at any time, unless interests have been acquired by bona fide purchasers (Jermain v. Langdon 8 Paige 41), and possibly the case should be likened to that of administration upon the estate of a living person; in which case the proceedings are void though the proof as to the death may appear to have been complete and ample. Moore v. Smith 11 Rich. 569; Jochumsen v. Savings Bank 3 Allen 87; Melia v. Simmons 45 Wis. 334; D'Arusmont v. Jones (Tenn.) 11 Cent. Law Jour. 253; contra, Roderigas v. Savings Institution 63 N. Y. 460. But there has been no averment in this case that the jurisdictional fact did not exist; all that is claimed is, that it was not sufficiently shown. The parties proceeded against under the order for publication never appealed, and never applied to set aside the proceedings on the ground either of defective showing, or that the fact affirmed did not exist. Suppose they had appeared after decree but before sale, and moved to vacate proceedings on the sole ground that the affidavit was defective and without denying its truth; what possible equity could they have had for relief upon this ground? And what standing can others have upon equities which they fail to show?

Comment on any other branch of the case is unnecessary in view of the opinion on file.

45 424

66 703 45 424 140 635

JOHN N. GOTT V. SOPHRONIA BRIGHAM.

Challenge to the array.

A challenge to the array in the Superior Bourt of Detroit was properly overruled where interposed on the grounds (1) that the judge was not present when the names of the jurors were deposited in the jury box and those of former jurors removed; (2) that he did not determine the number to be drawn for the term, but that twenty-four were drawn and he was not present at the drawing; (3) that they were drawn by the sheriff and the minute was kept by the clerk; (4) that the affidavit accompanying the list of 300 jurors filed in the clerk's office did not

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