NASH ET AL v. MALLORY ET AL.

I think that the decree below ought to be affirmed except as to the costs, and as to them, that it should be reversed, and that neither party should recover costs as against the other.

The other Justices concurred.

John S. Nash et al. v. Dwight Mallory et al.

Writ of attachment: Return day: Omission of year. Where a writ of attachment was tested and issued on the 7th day of February, 1867, but made returnable "on Tuesday the 2d day of April," without expressing the year, held, that it must be understood as referring to April of the then current year.

Error to Lenawee Circuit.

Suit in this case was commenced by attachment.

The

writ omitted to state the year of the return day. A motion to set aside the writ for said cause was denied, and judgment was rendered in favor of plaintiff.

A. L. Millard, for plaintiff in error.

The writ of attachment by which the suit was commenced is void for want of a proper return day.

It is returnable on the second day of April; not specifying any year.

A writ of attachment must require the sheriff to summon the defendant to appear at a time and place to be specified in the writ.-2 Comp. L. 4746.

A writ not returnable on a certain day is void; and such a writ can not be amended. -4 Mo. 222; 2 Johns. 190; 4 Id. 309; 9 Id. 386; 2 Wend. 259; 13 Pick. 90.

So when the place at which the defendant was summoned to appear was uncertain, the writ was held void.— 20 Ill. 89; 23 Id. 473.

NASH ET AL v. MALLORY ET AL.

Hodges & Dickinson, for defendants in error.

The defendant in attachment is to be summoned to appear at the time and place specified in the writ, and the writ is sufficient if it specify a time and place with the same certainty as other writs issuing out of the Circuit Court. 2 Comp. L. § 4746.

In the case at bar the writ was returnable on the first Tuesday of a month within three months of its date, and was in all respects within the provisions governing the issuing of other writs out of the same court. - · Rule 13.

The writ was dated February 7th and served March 11th, and the defendants could not have been misled by the omission of the insertion of the year, for they are bound to know the time for appearance. The month named will be held to mean the first month of that name within three months from the date of the writ.-11 Wis. 71; 29 N. H 385, and cases cited.

If the omission complained of makes the writ defective, it is such a defect as may be amended.-2 Comp. L. 1202; 2 Doug. 90.

CHRISTIANCY J.

The writ of attachment in this case was tested and issued on the seventh day of February, 1867, and made returnable "on Tuesday, the second day of April," without the word next or anything expressly stating the year of the return. The writ appears to have been personally served on or prior to the eleventh of March, 1867.

The only question is whether, on account of this omission, the writ was void?

By the statute-2 Comp. L. Art. 4746-the writ must require the sheriff to summon the defendant "to appear at a time and place to be specified in the writ." It is insisted that this writ does not conform to this requirement, and is not returnable on any particular day.

17 MICH.

NASH ET AL V. MALLORY ET AL.

Outside of courts of law, among people of common understanding, there can be little room to doubt that every man would readily understand the month of April mentioned in this writ, as intended to indicate the April next to occur after the date of the writ: the April of the then current year.

No man of plain common sense would be likely to infer that the intention of the writ was to pass over the April first to occur, to pass over four or five terms of the court without any authority of law, when the April first to occur would meet all those requirements; and, therefore, no man would be likely to be misled by the omission. And it would be an evidence of deplorable infirmity in courts of law, if they should be incapable of understanding what is so plain to the rest of mankind.

This is not therefore the case of a writ returnable out of term, or on a wrong day, or no particular day, as in the cases cited by the counsel for the plaintiff in error. It is in effect, from what sufficiently appears upon its face, returnable at the right term and on the proper day in the next April after its date.

The case of Kelly v. Gilman, 29 N. H. 385, is an authority precisely in point, where it was held that a writ dated in February, 1853, returnable at the court to be holden on the fourth Tuesday of April, without the word "next," was to be understood as returnable at the next April the April of the then current year. See also Tillson v. Bowley, 8 Greenleaf, 163, and Drew v. Dequindre, 2 Doug. (Mich.) 93.

The judgment of the Circuit Court must be affirmed, with costs.

The other Justices concurred.

CAMPAU v. COATES.

Dennis J. Campau v. William Coates.

Circuit Courts: Vacation of judgment. The power of the Circuit Court to set aside a judgment, is not confined in its exercise to the same term at which the judgment was rendered—. -12 Mich. 449-and where it possesses such power it is usually a discretionary one and can not be reviewed.

Circuit Courts: Writ of possession wrongfully issued. Where the Circuit Court set aside a judgment, and writ of possession issued thereon under which certain premises had been seized, held, that it was authorized also to restore the possession of the premises so seized.

It is a sound rule of practice that, when the process of a court has caused an abuse, and no innocent party has obtained rights under it, the court, in setting aside the process, may restore what it has wrongfully seized.

Heard July 10th. Decided July 13th.

Certiorari to Wayne Circuit.

This was a proceeding commenced before a Circuit Court Commissioner to recover possession of certain premises, and removed to the Circuit Court on appeal.

Judgment was rendered in favor of plaintiff below.
The facts are stated in the opinion.

Levi Bishop, for plaintiff.

It has been hinted that the order of which we complain was in the discretion of the court. This certainly is not a tenable position. Our judgment was regular. No complaint was made of it. The parties stipulate that the execution upon it shall be stayed till another suit is determined. That suit is determined by a non- suit, granted by the court, on demand of the defendant himself. Thus the agreement and stipulation of the parties gives us our writ of execution on our judgment, and the possession of our property. There was no discretion here. The acts and agreement of the parties settled their rights and excluded all discretion in the The case therefore does not come within the rule of 12 Mich. 449, 451.

case.

A final judgment can not be closed at which it is rendered.

disturbed after the term is At least the steps to set

CAMPAU v. COATES.

aside a judgment should be taken during that term. Then we should know, as the books say we have a right to know, when a suit at law is finally determined.

Where a case had been tried at nisi prius, if a motion was not made for a new trial, or in arrest of judgment, within the first four days of the court in banc at its next term, judgment was entered up at that term, and then the matter was forever closed so far as that court was concerned. 3 Blackstone, 386, 395, 398 406, 412; 12 Mich. 459.

The practice has sometimes been indulged in this state, of setting judgments aside after the term was closed at which they were entered; but it is certainly a most dangerous practice, and ought not to be favored.

C. J. O'Flynn, and S. T. Douglass, for defendant.

If there was jurisdiction, whether the order should be made, it was matter of discretion in the court, and as such, not subject to review in this court.-1 Doug. 106; 2 Mich. 404; 4 Id. 336; 12 Id. 449.

The general jurisdiction of the Circuit Courts to set aside their own judgments can not be questioned.

The lapse of the term in which the judgment was rendered did not deprive the court of such jurisdiction.-2 Mich. 133; 5 Id. 30; 12 Id. 449.

Nor the circumstance that the judgment had been executed by service of the writ of possession.-12 Mich. 449.

It was properly made a part of the order vacating the judgment that the defendant should be restored to the possession of the premises. Green's Pr. 196; 1 Burr. Pr. 292; 2 Tidd. Pr. 935, 936, 937; 15 Wis. 289; 15 Lou. Ann. 97; Yelv. 179.

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And that the sheriff should execute this part of the order. 1 Comp. L. § 417.