Opinion
Docket No. 6.
Submitted January 3, 1928.
Decided February 14, 1928.
Appeal from Wayne; Browne (Clarence M.), J., presiding. Submitted January 3, 1928. (Docket No. 6.) Decided February 14, 1928.
Bill by the Standard Oil Company against Frank Brukwinski and others to enjoin an execution, and to set aside a default judgment. From a decree for plaintiff, defendants appeal. Affirmed.
Bryant, Lincoln, Miller ( Joseph H. Clark, of counsel), for plaintiff.
On October 29, 1920, Stella Brukwinski by Frank Brukwinski, her next friend, filed a declaration in the Wayne circuit against Standard Oil Company, an Indiana corporation. On November 5, 1920, the following paper was filed in the cause:
"RETURN OF SHERIFF.
"STATE OF MICHIGAN, } } ss. "County of Wayne. }
"I hereby certify and return, that on the 4th day of November, A.D. 1920, I served the declaration of which the within is a copy, on the Standard Oil Company, by serving R.F. McConnell, Supt. of Co., the defendant named in said declaration, by delivering to R.F. McConnell, said defendant at the city of Detroit, in said county of Wayne, a true copy thereof and of the foregoing rule to plead the notice relating thereto, together with a true copy of the notice to appear and plead, attached thereto, as hereto attached.
"IRVING J. COFFIN, Sheriff Wayne County, "By WESLEY J. WING, Deputy Sheriff of Said County."
Such return or writing was not indorsed on or attached to the declaration (3 Comp. Laws 1915, § 12441).
On March 5, 1923, default of defendant, said Standard Oil Company, for want of appearance, was entered, and judgment followed on April 9, 1923. On June 21, 1924, an execution was placed in the hands of the sheriff. Said Standard Oil Company, as plaintiff herein, filed this bill, alleging in substance that no service on it had been had, that the return of service was irregular and insufficient, and that the default and judgment were void, and prayed in chief that levy be enjoined and that the judgment and default be set aside. Plaintiff had decree. Defendants have appealed.
On the authority of Whirl v. Reiner, 229 Mich. 114, which is accessible and which need not be quoted, the decree must be sustained. See, also, Stanczuk v. Pfent, 231 Mich. 689, 691.
That the return is bad for another reason, discussed in Price v. Delano, 187 Mich. 49; McCain v. Wayne Circuit Judge, 187 Mich. 73, and Hoben v. Telephone Co., 176 Mich. 596, need not be considered.
Affirmed, with costs to plaintiff.
NORTH, FELLOWS, WIEST, McDONALD, and SHARPE, JJ., concurred.
Chief Justice FLANNIGAN and the late Justice BIRD took no part in this decision.