By the Court,
Upson, J.Jurisdiction of the action in the first instance was obtained, it at all, by the making and attaching the necessary affidavit to the writ, under the statute. §§ 4742, 4743, C. L.
Whether the Court can legally continue to exercise.that jurisdiction, depends upon the taking of the proper steps after the first. The notice is not necessary to give the Court jurisdiction of the action at the commencement. But when jurisdiction has been obtained, the subsequent proceedings, and especially those for the giving notice to a defendant not served with process, must conform to the law in order to authorize the exercise of its jurisdiction by giving judgment; and the statute in this State, in case of neglect to publish notice, requires the attachment to be dismissed with costs. § 4759, C. L. ; Brahe on Attachments, §§ 436, 437.
Mr. Drake, in the sections above quoted, says that want of such conformity will be error and a good ground for reversing the judgment of the Court, but will not make the proceedings void ; but under our statute, the Supreme Court, in King vs. Harrington, 14 Mich., 532, intimate that where the defendant is not served with process, the publication of notice is necessary to enable the court to obtain jurisdiction, and, also, that a return by the sheriff before return day is premature, as he could not know but that the defendant might be found by the return day. By the affidavits filed and amendment now made, in this case, the proof of publication appears to be sufficient, and although the return by the sheriff was premature, yet we fully concur with the views of the Court as expressed in the case of Scudder vs. York et al, 1 Mich. Nisi Prius, page 35, viz. : “As the writ, in contemplation of law, is not to be considered as returned, until the ‘ return day ’ thereof, if the defendant should come within the officer’s bailiwick before that time, it would be the duty of such officer to serve his writ; and though he may *117have actually deposited it with the clerk, I can see no reason why he might hot, in sich case, take it again for service.” Doubtless the more correct practice would be for the officer to retain the actual possession of the writ until the return day.
Motion denied.