judge granting a reargument after the judgment had been reversed. The record hardly justifies that inference, and the fact that the points raised by the errors alleged in the affidavit for certiorari were not made before the justice should not have precluded their consideration at the circuit. "A party may remove a cause by certiorari, although he did not appear before the justice. By neglecting to appear he waives nothing." Campau v. Fairbanks, 1 Mich. 152. "Certiorari is the proper proceeding to get rid of a void judgment." Lake Shore, etc., R. Co. v. Hunt, 39 Mich. 469.

A justice's powers are statutory, and his jurisdiction must affirmatively appear. Without a valid service of the writ or an appearance by defendant, he has no jurisdiction to proceed and render a judgment. Vliet v. Westenhaver, 42 Mich. 593. And the only sufficient evidence of such service is that pointed out by the statute. Manifestly a judgment based upon a return which does not show a valid service would be void, and all proceedings in a case where there has not been a valid service are null. In the present case there was service of the writ to the extent of taking the property and attempting to find the defendant. Before the rendition of the second judgment the return was made, but none was made on the return day. Might the justice, upon his own motion (defendant not appearing), adjourn the case for four days to enable the plaintiff to obtain a return of the writ? The power of the justice to make such adjournment is statutory, and is confined to the time of the return of process or of joining issue. 2 How. Stat. § 6903. The language is not that he may adjourn on the day that the writ is returnable, but "at the time of the return," and he has no power to adjourn without the return of the writ. Had the plaintiff or the justice failed to appear within one hour after the time mentioned in the writ, the proceeding would have abated, under ordinary circumstances. Had the defendant appeared and asked a dismissal of the proceedings, it would have been granted.

There was no valid evidence that there had been a service, upon which jurisdiction depended. Manning v. Johnson, 7 Barb. 457; Brown v. Cady, 19 Wend. 477; Stadler v. Moors, 9 Mich. 268; Hall v. Shank, 57 Mich. 36. We think that there was no authority to proceed with the case without a return, or to adjourn the same, which the act of the justice amounted to, and that the subsequent proceedings were void.

The judgment should be affirmed.

The other Justices concurred.

BRAUDY v. DETROIT, GRAND HAVEN & MILWAUKEE
RAILWAY CO.

107 100 119 586

107 100 120 119 120 123

RAILROAD

COMPANIES-ACCIDENT AT

NEGLIGENCE.

CROSSING-CONTRIBUTORY

One who is struck by a train while attempting to walk across a railroad track is guilty of contributory negligence, precluding a recovery for the injury, where the train was in plain view after he had reached a point six feet from the track.

Error to Kent; Adsit, J. Submitted October 23, 1895. Decided November 19, 1895.

Case by Max Braudy, administrator of the estate of William Koehn, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company, for the alleged negligent killing of plaintiff's intestate. From a judg ment for defendant upon verdict directed by the court, plaintiff brings error. Affirmed.

Gustare A. Wolf, for appellant.

Geer & Williams (E. W. Meddaugh, of counsel), for appellee.

LONG, J. Plaintiff's intestate was killed by a train upon defendant's road at its crossing at Grand avenue, in the city of Grand Rapids. This action is brought to recover damages upon the ground that defendant was negligent in not having a flagman or gateman at the crossing, and that it was running its train at a high rate of speed without sounding its bell or whistle.

It appears that the deceased, a man about 48 years. of age, about 5:30 p. m. of January 7, 1895, was walking north on the east side of Grand avenue. As he approached the railroad crossing, his view was obstructed by a high fence about a wood yard extending along the street, until he came to the defendant's right of way, about 55 feet in width before reaching the tracks of defendant's road. A side track extended along the main line upon the side from which decedent was approaching. Upon this side track stood two cars, about 50 feet east of Grand avenue; the first one a box car about 12 feet high, and the other a coal car about 6 feet high.

The plaintiff's theory was that by reason of this obstruction to decedent's view he could not see the approach of the train; that he was lured into this place of danger by the failure to ring the bell or blow the whistle, and that as he reached the track he probably, on the impulse of the moment, and under the sudden danger in which he was placed, made an effort to cross the track, and, by reason of the great rate of speed at which the train was approaching, was struck and killed; and that the running of the train at a rate of speed from 35 to 40 miles per hour was willful and reckless.

The only witness to the accident was the fireman on the engine, who testified:

"As we approached Grand avenue within a short distance, I saw a man walking across the highway leisurely, seemingly unmindful of what he was doing. When I first saw him he was just stepping inside the rail; had one foot on the outside, and making a step forward to step inside the rail, between both rails."

The track of the defendant's road at this point was comparatively straight as it extended eastward, and an approaching train from the east could be seen for a distance of 80 rods as decedent arrived at defendant's right of way. There was a headlight upon the engine, and the only obstruction to his view was the two cars standing upon this side track. As he passed beyond these cars, it is admitted, there was a space of six feet where his view was wholly unobstructed by the track, before he reached the rail of the main track; and it is apparent that, had he looked in that direction, he would have seen the approaching train. If he looked and saw the train, he was negligent in attempting to cross in front of it; if he did not look, then he was in fault in going into this place of danger without taking that precaution. The contention that he was lured into the place of danger by the negligence of the company, and would not therefore be in fault if he did not take the necessary precaution to save himself from injury, has no force. It is true that cases have arisen where persons, in driving their teams towards and upon crossings, have been put in a place of danger by the negligence of railroad companies, and that such persons have been permitted to recover upon the theory that they could not be said to be negligent in not taking the least hazard; but that rule is not applicable to this case. Here the decedent was on foot, and was in safety at the point where he passed the two cars upon the side track, and, as has been stated, had he looked, must have seen the approaching train. The case falls so clearly within the rule of this court in Gardner v. Railroad Co., 97 Mich. 240, that further discussion is unnecessary.

The court below directed verdict and judgment in favor of the defendant, and that judgment must be affirmed. The other Justices concurred.

SPRING v. RANDALL.

1. TRUSTS-RIGHTS OF CREDITORS OF BENEFICIARY-SURPLUS IN

COME.

2 How. Stat. § 6614, exempting trust funds from the operation of creditors' bills in cases where the trust has been created by or the trust fund has proceeded from some person other than the defendant, should be construed in connection with 2 How. Stat. § 5575, providing that, when a trust is created to receive the rents and profits of lands, and no valid direction for accumulation is given, the surplus of such rents and profits, beyond the sum necessary for the support of the cestui que trust, shall be liable in equity to the claims of his creditors, in the same manner as other personal property which cannot be reached by execution; and under said statutes, so construed, the income of a trust fund, payable to a designated beneficiary, is exempt from the payment of his debts only so far as the same is necessary for his suitable support.

In such case, the court having jurisdiction of the trust estate may direct the trustee to pay a judgment against the cestui que trust out of the surplus income of the fund.

3. SAME-PETITION.

The facts entitling the creditor to the relief stated may be as well presented to the court by petition as by original bill.

Appeal from Kent; Padgham, J., presiding. Submitted October 23, 1895. Decided November 19, 1895.

Petition by Henry Spring against Lewis E. Randall and Marie Van Zandt Randall to subject the income of a trust estate to the payment of a judgment against the beneficiary. From an order overruling a demurrer to the petition, respondent Marie Van Zandt Randall appeals. Affirmed.

Smiley, Smith & Stevens, for petitioner.
Frank L. Carpenter, for appellant.