
    Thomas Woodmansie v. Joseph Hollon.
    
      Practice in Supreme Court: Motion to dismiss writ of error for want of prosecution: Costs. A writ of error will not be dismissed for delay in filing return, if filed before the motion is heard. But where there was ground for the motion when noticed, costs were allowed the moving party, although his motion was defeated.
    
      Heard and decided April 7th.
    
    Error to Calhoun Circuit.
    This was a. motion to dismiss for want of prosecution.
    The writ was sued out January 17, 1868, and returnable February 18, following. But the return was not made and filed till February 21.
    Notice of the issuing of said writ was served on defendant below, January 17, as follows:
    “Please take notice that a writ of error, duly issued by the Supreme Court of the State of Michigan, has been served upon the clerk of the Circuit Court for the county of Calhoun, and a bond duly filed with .said clerk, duly executed, etc.”
    It appeared that the defendant’s attorney saw and examined the said writ of error in the office of the clerk of the Circuit Court before the return day of the same, but that the notice required by rule (10) was not served.
    The motion to dismiss was made on the 19th of February, 1868. The return to the writ of error was filed two 'days subsequent.
    
      D. Darwin Hitglies, for the motion,
    cited Rules 10 and 16.
    
      
      Wm. II. Brown, contra,
    
    cited Babcock v. Twist, 16 Mich. 282, and Rule 20.
   The court

held that inasmuch as he had knowledge of the writ and of its tenor and contents, the defendant in error had all the information that he would have received from a technical notice; and also that the filing of the return before the motion was heard would prevent the dismissal of the writ according to the usual practice.

But, inasmuch as notice of the motion to dismiss was given before the filing of the return, and when there had been a failure to comply with the rules, costs were allowed to the moving party notwithstanding the subsequent filing defeated the motion.  