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THE PEOPLE'S MUTUAL BENEFIT SOCIETY OF ELKHART,
INDIANA, V. ROBERT E. FRAZER, CIRCUIT
JUDGE OF WAYNE COUNTY.

Declaration-Affidavit of service-Mandamus.

Mandamus will lie to set aside a default judgment, where the affidavit of service of the declaration by which the suit was commenced fails to show how the service was made; citing How. Stat. § 7293.1

Mandamus.

Argued November 14, 1893. Granted

November 15, 1893.

Relator was sued in the circuit court for Wayne county upon one of its policies. The affidavit of service of the declaration by which the suit was commenced stated that "due service" of a copy of the declaration was made on the agent of the relator at Bay City, Michigan, naming him, on April 21, 1893, and that another copy of the declaration, with notice of rule to plead indorsed thereon, was served upon J. J. Crowley, another acting agent of the relator, at Detroit, Michigan, on the 8th day of May, 1893. The default of the relator for want of an appearance and plea was entered, and made absolute, and a judgment rendered, which relator moved to set aside, as also its default, on the ground that no legal proof of the service of the declaration had been made. The motion was denied, and relator applied for a mandamus to compel the respondent to grant the motion.

How. Stat. § 7293, provides that "when a copy of a declaration and notice of rule to plead, or a subpoena in chancery, or any other writ or paper issued by a circuit court, shall be delivered to any sheriff, under-sheriff, or deputy to serve, it shall be the duty of such officer to serve the same with all convenient speed, and to return the same, with his certificate indorsed thereon of the time and manner of such service," etc.

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A. G. Pitts and 0. M. Leonard, for relator, contended: 1. How. Stat. § 7293, requires the certificate of service of a declaration to state the time and manner of such service, and an officer cannot decide and report that "due service" or "legal service" has been had; citing Perry v. Dover, 12 Pick. 206; Hodges v. Hodges, 6 Iowa, 78; Farris v. Powell, 10 Id. 553; Read v. French, 28 N. Y. 285.

William Look (A. C. Blodget, of counsel), for respondent, contended:

1. This is really a motion to set aside a default on various grounds, and before the relator can be heard it must tender or pay the costs of the default, and plead issuably; citing Circuit Court Rule No. 22; Walsh v. Circuit Judge, 76 Mich. 470.

2. The question of the validity of the service was one of fact for the trial judge, and his finding that the service was good will not be set aside, provided there was any testimony upon which to base said finding; citing Vorheis v. Mutual Benefit Society, 86 Mich. 32; Reyer v. Association, 157 Mass. 367; How. Stat. §§ 4362, 8137, 8145.

PER CURIAM. A writ of mandamus is granted, on the ground that the affidavit of service of the declaration does not show how such service was made. How. Stat. § 7293.

JOHN ROSKOPP V. ARTHUR L. CANFIELD, CIRCUIT Judge OF MACOMB COUNTY.

Attachment-Dissolution-Appeal-Notice of trial.

Notice of trial of an appeal from an order dissolving a circuit court writ of attachment is properly served upon the attorneys of record for the plaintiff in the attachment suit, who appeared and defended for the appellant in the dissolution proceeding, and one of whom made the affidavit for appeal, in which he stated that he was one of the attorneys for the appellant in said proceeding, and made the affidavit for and in his behalf.

Mandamus. Argued November 14, 1893. Denied November 15, 1893.

Relator commenced a suit by attachment in the circuit court for Macomb county. The attachment was dissolved by a circuit court commissioner, and relator appealed. The attorneys of record for relator in the attachment suit appeared and defended in the dissolution proceeding, and one of them made the affidavit for appeal, which stated that he was one of the attorneys for the relator in said proceeding, and made the affidavit for and in his behalf. Notice of trial of the appeal was served upon said attorneys, who moved to strike the case from the calendar on the ground that such service was unauthorized, as the appellant had not appeared by attorney in said appeal case, and no notice of trial had been served upon him in conformity with the rules and practice of the court. The motion was denied, and relator applied for mandamus to compel the respondent to grant the motion.

Lungerhausen & Erskine, for relator, contended:

1. The service of notice of trial upon the attorneys who appeared before the commissioner was unauthorized; citing Clark v. McGregor, 55 Mich. 412.

2. Relator had not appeared by attorney in the appeal case, and was in the city, and personal service could have been had upon him if desired, as required by Circuit Court Rule No. 10, as amended October 8, 1891, which provides that "in cases of appeal, and in all cases commenced in the circuit court, where the party upon whom notice is sought to be served has not appeared by attorney, service shall be made on such party if he is a resident of the State, and his place of residence can be ascertained."

Eldredge & Spier, for respondent.

PER CURIAM.

The writ will be denied. Where the attorneys of record for the plaintiff in an attachment suit in the circuit court appear and defend in a proceeding

before a circuit court commissioner to dissolve the attachment, and one of them makes the affidavit for appeal from the order of dissolution, in which he states that he is one of the attorneys. for the appellant in said proceeding, notice of trial of the appeal is properly served upon said attorneys.

THE WAYNE COUNTY SAVINGS BANK V. THE SUPERVISOR OF THE TOWNSHIP OF ROSCOMMON.

Taxes-Municipal bonds-Mandamus.

Mandamus will not lie to compel a township to assess a tax to pay the uncollected portion of a former assessment, ordered to be made to pay the amount then due upon its bonds, until after the sale for delinquent taxes of the lands upon which the former assessment was made.

Mandamus.

Argued November 14, 1893. Granted in part November 15, 1893.

On November 16, 1892, a mandamus was granted, upon the petition of the relator, requiring the respondent to assess upon the taxable property of the township of Roscommon the amount then due for principal and interest upon certain bonds issued by the township and owned by the relator. The assessment was made, but only a portion of the tax had been collected, when this application was made for a mandamus to compel the respondent to assess upon the roll for 1893 a sum sufficient to cover the uncollected portion of the former assessment, and the amount which had matured on the bonds since said assessment; the relator stating in its petition that the circuit court for Roscommon county would not again convene

until January, 1894, and that therefore relator would be prejudiced should it be remitted to the circuit under Circuit Court Rule No. 107.

George J. Cummins, for relator.

Simonson, Gillett & Courtright, for respondent.

PER CURIAM. Mandamus will be granted as to assessment for bonds which have fallen due since the order heretofore made, and denied as to amounts required to be assessed by said order until after the sale for delinquent taxes of the lands upon which said assessment was made.

THE GYPSUM, PLASTER, AND STUCCO COMPANY V. WILLIAM
E. GROVE, CIRCUIT JUDGE OF KENT COUNTY.

Attachment-Shares of stock-Equitable interest.

Shares of stock in which the debtor has only a beneficial interest, and the legal title to which is vested in a third person as trustee, are not subject to attachment.

Mandamus. Argued October 24, 1893. Denied November 28, 1893.

Relator sued out of respondent's court a writ of attachment, and sought to levy it upon certain shares of stock issued by a Michigan corporation to defendant's manager as trustee, defendant being a foreign corporation. Defendant claimed a beneficial interest in the stock, but its name did not appear upon the corporate books or stock certificate, and the legal title to the stock was vested in the trustee at the time of the attempted attachment. Respond

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