RE: [tips_and_tricks] Case law needed for Mich in .
- Read Mi Rules of Civil Procedure on service, there should be soem cases listed to the end on the service rule. Try GOVENGINE.COM
Allwyn Associates <allwynassociates@...> wrote:Search case law for free at www.lexisone.com
From: firstname.lastname@example.org [mailto:email@example.com] On Behalf Of Lenny VanDerPloeg
Sent: Saturday, December 03, 2005 6:55 AM
Subject: [tips_and_tricks] Case law needed for Mich in .Could someone help me with some case law from Mi.I need something on proof of service issue. I was not served.I am having to file a Motion to Vacate Judgement in a Credit Card case the server says he served me.But I have 5 affidavits drawn up that say he didnt. I just need some case law to put in it.Thank YouLenny
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MCR. 5.104 states what is required for proof of service first look to see if that was complied with. Talior your affidavits to first state you are here by speical apperance , second if there are any facts witness etc that can show how there is no way you could have been served, thrid if there is any defects in the services stated them (failure to be verified etc.). MCLA 600.1910 states what are the consquences for failure to make service although if it is a an officer you have the burden of showing not only that officer failed to serve you (they are always presumed to do their duty) but also that you did not actaully know about the hearing.
As to the proceedure it must be a motion to reconsider or vacate order in the original court since unlike with most void judgements it seems in your state if an officer is stating he served you the attach on the judgment can not be collateral. Remember to make it clear that your there by speically apperance on the issue of personally jurisdicition and do not get in to any other issues or your give court jurisdicition. If the court rules against you most states allow discretionary reviews on motions to dismiss or motion to reconsider so you do not have to go any farther with the action till that matter is resovled. I hope this helps and if you like I have a packet on Void judgements that explains all there is to know and do on the matter or a combow e packet on research cd that contains all the states and federal rules, caselaw, and sample forms that is needed if you intersted email me. Oh below is some positive case law or head notes that may be off some guidence.
Official return of officer cannot be questioned in collateral proceeding, but falsity of return may be attacked by affidavit on motion in same suit to set it aside. Clabaugh v. Warner (1924) 199 N.W. 710, 228 Mich. 207. Process 141
On motion to set aside sheriff's return, either party is entitled to have testimony taken on issue whether service was had on defendant, and court on own motion has right in its discretion so to order. Clabaugh v. Warner (1924) 199 N.W. 710, 228 Mich. 207. Process 141
Party attacking an officer's return has burden of overcoming verity which attaches to unqualified official return of officer acting under his official oath to satisfaction of court required to determine the fact. Delph v. Smith (1958) 91 N.W.2d 854, 354 Mich. 12; Clabaugh v. Warner (1924) 199 N.W. 710, 228 Mich. 207.
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