Bennett v. Attorney General of Michigan

• Citation: 65 Mich.App. 203,237 N.W.2d 250
• Decision Date: 16 October 1975
• Docket Number: Docket No. 21462
• Parties: William L. BENNETT, Plaintiff-Appellant, v. ATTORNEY GENERAL OF MICHIGAN, Defendant-Appellee. 65 Mich.App. 203, 237 N.W.2d 250
• Court: Court of Appeal of Michigan (US)

Page 250

237 N.W.2d 250

William L. BENNETT, Plaintiff-Appellant, v. ATTORNEY GENERAL OF MICHIGAN, Defendant-Appellee.

Docket No. 21462.

65 Mich.App. 203, 237 N.W.2d 250

Court of Appeals of Michigan.

Oct. 16, 1975.

Released for Publication Jan. 23, 1976.

[65 MICHAPP 203] William L. Bennett, in pro. per.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., J. Ronald[65 MICHAPP 204] Kaplansky, Asst. Atty. Gen., for defendant-appellee.

Before V. J. BRENNAN, P.J., and D. E. HOLBROOK and CAVANAGH, JJ.

PER CURIAM.

Plaintiff, William L. Bennett, brought this action in the Court of Claims against defendant, the Attorney General of the State of Michigan, for defamation, abuse of process, and malicious prosecution. Defendant did not file an answer to plaintiff's complaint, presumably because service of process was not effected in a manner which conformed to the requirements of M.C.L.A. § 600.6410(3); M.S.A. § 27A.6410(3). On March 26, 1974, plaintiff filed a default of the defendant. Two days later, on March 28, 1974, a motion to strike the entry of default was filed by the Attorney General. Before a hearing was held on this motion, defendant filed a motion for accelerated judgment under GCR 1963, 116.1(1) and (2) and Court of Claims rule 4 or, in the alternative, for summary judgment under GCR 1963, 117.2(1). Plaintiff thereupon filed a motion for entry of a default judgment and an answer to the motion to dismiss arguing that the motion to dismiss was premature because the default had not been set aside, and the defendant had not specified a meritorious defense in the motion to strike the default, that actual service had been made and that, even if service was effected improperly, it was good under GCR 1963, 105.8. After hearing were held on the above motions, the trial judge set aside the default for lack of personal service and granted summary judgment in favor of defendant under GCR 1963, 117.2(1) for failure to state a claim upon which relief could be granted. It is from this decision that plaintiff now appeals.

[65 MICHAPP 205] Plaintiff first claims that the trial judge erred in setting aside the default. We disagree. The setting aside of a default is discretionary with the trial judge, upon good cause shown. GCR 1963, 520.4. In the case at bar defendant was not properly served. While it may be true that this was done through no fault of plaintiff's, who was representing himself and relied upon the advice given him by an employee of the Court of Claims, it is clear that this should not serve to the detriment of either plaintiff or defendant. The trial judge, by setting aside the entry of default and considering defendant's motion for accelerated or summary judgment, placed the parties in exactly the same position they would have been in had service been properly effected. There was no abuse of discretion.

Plaintiff next contends that the trial judge erred in granting defendant's motion for summary judgment. The trial judge granted defendant's motion in this regard because he found that plaintiff had failed to state a claim upon which relief could be granted. GCR 1963, 117.2(1). Since GCR 1963, 117.2(1) tests the legal sufficiency of the pleadings, we must assume that all the allegations of plaintiff are true in deciding whether plaintiff states a claim upon which relief can be granted.

Plaintiff relies on Maki v. City of East Tawas, 385 Mich. 151, 188 N.W.2d 593 (1971), for the proposition that governmental immunity established by M.C.L.A. § 691.1407; M.S.A. § 3.996(107) is invalid, and that consequently the Attorney General is not immune. ¹ Plaintiff apparently assumes that immunity[65 MICHAPP 206] is created by statute, and that when such a statute is held to be invalid, no immunity can be said to exist. The law is too well settled to require discussion, however, that the sovereign immunity of the state will obtain unless there is an express statutory waiver thereof. Van Antwerp v. State, 334 Mich. 593, 55 N.W.2d 108 (1952); McNair v. State, 305 Mich. 181, 9 N.W.2d 52 (1943); Mead v. State, 303 Mich. 168, 5 N.W.2d 740 (1942). The statute in question, M.C.L.A. § 691.1407; M.S.A. § 3.996(107), sought merely to codify the common law, and by its terms disclaimed any construction which would modify or restrict the immunity of the state from tort...