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1 Mich. N.P. 312

Elliot v. McHale

Circuit Court of the 47th Circuit of Michigan · decided 1870-09-15

The defendant moved that the case be stricken from the calendar of cases for trial, and that the same be dismissed for reasons following: The plaintiff’s attorney insists contra, that the proceedings by defendant’s attorney are irregular, and not in conformity to the statute referred to, and did not operate as a stay of proceedings,, alleging, 1, That there was no legal service of notice of trial. 2, That there was no note of issue filed. 3, That there had been no county fee…

Decided 1870-09-15

¶1By the Court,

Goodwin, J.

¶2It seems to me, and I have *313therefore so held, that the note of issue prescribed by the statute and rules is for the clerk to whom it is to be delivered, to guide him in making up the calendar for the term. The party is to be governed by the notice of -trial served upon him. The statute and rules provides for both; the one for the clerk, the other for the party. And when the cause is placed by the clerk on the calendar and found there on the. first day of_the - term, upon its being called, it is well there..

¶3The service of notice of trial in the ease l think insufficient-The double direction of the letter as to place, to be carried not in the mail, but by a conductor of the train, to be delivered not at a post office, but a place at a Railway station, I do not conceive to be a proper compliance with the rule and statute. For this reason, therefore, the motion that the case be stricken from the calendar should be granted.

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