
    Henry Johnson v. John C. Dick, Justice of the Peace, and John W. Beistle.
    
      Replevin — Termination of proceedings for want of service — Waiver of return — Assessment of damages — Mandamus.
    Where proceedings in replevin are terminated before a justice of the peace, after seizure of property, for want of due service on the defendant, he may waive a return and have his damages assessed, and mandamus will lie to compel such assessment.
    Application for mandamus to compel assessment of damages in replevin.
    Submitted February 8, 1888.
    Granted March 2, 1888.
    The facts are stated in the opinion.
    
      Clapp & Bridgman, for relator.
   Campbell, J.

In this case Beistle sued relator in replevin, and property was taken on the writ, but due service was not made on relator. When the case came up for disposal, the justice dismissed the proceedings. Relator waved a return of the property, and applied to the respondent Dick, who was the justice before whom the case was brought, for an assessment of damages, which he refused from a supposed want of power. Application being made to this Court for a mandamus, we allowed an order to show cause, and the cause is now before us for decision.

We have several times held that when the proceedings before the justice were terminated as they were here, the party whose goods are taken may waive a return, and have his damages assessed. People v. Tripp, 15 Mich. 518; Forbes v. Judge of Washtenaw Circuit, 23 Id. 497; People v. Osborn, 38 Id. 313; Humphrey v. Bayn, 45 Id. 565 (8 N. W. Rep. 556), and eases cited. A case just like the present was decided during the past year. Williams v. Hess (1887).

The present case cannot be distinguished from those, and it is therefore needless to discuss it further.

The mandamus must be granted, with costs against respondent Beistle.

The other Justices concurred.  