Bettendorf v. F.W. Woolworth Co.

• Citation: 45 N.W.2d 343,329 Mich. 409
• Decision Date: 08 January 1951
• Docket Number: No. 34,34
• Parties: BETTENDORF v. F. W. WOOLWORTH Co. et al.
• Court: Michigan Supreme Court

Page 343

45 N.W.2d 343

329 Mich. 409

BETTENDORF v. F. W. WOOLWORTH Co. et al.

No. 34.

Supreme Court of Michigan.

Jan. 8, 1951.

Markle & Markle, Detroit, Richard G. Eubank and Fergus Markle, Detroit, of counsel for appellant.

Dickinson, Wright, Davis, McKean & Cudlip, Detroit, Glenn D. Curtis, Detroit, on the brief, for defendants.

Before the Entire Bench.

BUSHNELL, Justice.

This action for 'false arrest and false imprisonment' originated in the Common Pleas Court of the City of Detroit. A summons in trespass on the case was issued on May 18, 1949. Issue was joined by answer and the cause set for trial on June 23d. On that date defendants were in court with their witnesses, and ready for trial, but neither plaintiff nor her attorney appeared. Defendants' attorney moved the court to dismiss with prejudice. This motion was denied and the cause was dismissed without prejudice.

Defendants on June 29th obtained a writ of certiorari from the circuit court of Wayne county, seeking reversal of the action of the Common Pleas Court. The supporting affidavit reads in part as follows:

'That said defendants, F. W. Woolworth Company and Wade Callicott, filed their answer in said cause on June 10, 1949 denying the material allegations in the plaintiff's declaration; that on June 15, 1949 deponent received a notice that the cause had been set for trial June 23, 1949 at 10:00 a. m.; that on June 21, 1949 deponent received a telephone call from Richard G. Eubank of the office of Markle & Markle, attorneys for said plaintiff, asking deponent to stipulate for a jury trial inasmuch as the attorney for the plaintiff had neglected to file a demand for a jury trial within five days after return day as provided for in the rules. Upon deponents' refusal to so stipulate, the said Richard Eubank requested deponent to stipulate for a discontinuance of the case so that a new case could be started for the plaintiff and a timely demand made for a jury. Deponent refused to so stipulate and called attention to the court rule which prohibits a discontinuance after answer has been filed by defendants except by court order on cause shown. Deponents further informed said Richard Eubank that defendant had, after considerable difficulties, secured witnesses for the trial on June 23, 1949 and that said witnesses might not thereafter be available as they were no longer in the employ of defendant F. W. Woolworth Company.

'Deponent further says that on the morning of June 23, 1949 he appeared in Common Pleas Court with defendants and their witnesses for trial of the cause; that the attorneys for the plaintiff were not present and deponent telephoned their office and talked with Mr. Richard Eubank and was informed that they intended to let the case be dismissed and start a new case. Thereupon this deponent notified Mr. Eubank that he would object to this dismissal.

'Deponent further says that shortly after 10:00 a. m. on said June 23, 1949 said cause was assigned to Judge L. Eugene Sharp. When deponent appeared in the court room of said L. Eugene Sharp with defendants and their witnesses ready for trial, the case was called and deponent stated that he was in court with his clients the defendants and their witnesses to put in their defense. Upon being informed by the court that the court would dismiss the cause by reason of the absence of the plaintiff, deponent objected to such dismissal and informed the court of deponent's various conversations with the attorney for the plaintiff and called the court's attention to Michigan Court Rule 38 which provides that the plaintiff cannot discontinue after answer by the defendant except upon such motion supported by affidavit. Nevertheless, said Judge L. Eugene Sharp then and there dismissed said cause.'

These facts were not controverted by plaintiff. Defendants argue that such dismissal 'circumvents and nullifies' Michigan Court Rule No. 38 (1945) regarding discontinuances, and Common Pleas Court Rule No. 30 (1946) regarding demands for a jury trial. They assert that such action makes it possible to take a judgment against an absent defendant, while denying a defendant the right to obtain a final order in the absence of plaintiff. They claim that the dismissal without prejudice, in this instance, worked an undue hardship and resulted in injustice because certain witnesses are no longer in their employ and might be impossible to procure for a subsequent trial.

The circuit judge determined that 'the lower court erred in dismissing the plaintiff's action without prejudice.' The order of the Common Pleas Court was reversed and an order entered in the circuit court dismissing the cause with prejudice.

Plaintiff argues here that the circuit court was in error in dismissing her action with prejudice, because on certiorari it cannot review matters of discretion, nor do more than affirm or reverse the order of the Common Pleas Court.

We are also urged to apply the 'justice of the peace' one-hour rule discussed in Perry v. Link, 297 Mich. 50, 53, 297 N.W. 68, 70. This argument overlooks the fact that the Common Pleas Court of the City of Detroit is a consolidated court of record consisting of nine judges, with a civil jurisdiction not exceeding $1500. C.L.1948, § 728.1 et seq., Stat.Ann. § 27.3651 et seq. It also ignores the fact that the volume of business in this court is considerable. We do not consider Perry v. Link applicable to the Common Pleas Court of the City of Detroit.

The office of a writ of certiorari was discussed in Carroll v. City Commission of City of Grand Rapids, 266 Mich. 123, 253 N.W. 240. In that case this Court quoted from Jackson v. People, 9 Mich. 111, 77 Am.Dec. 491, Whitbeck v. Hudson, 50 Mich. 86, 14 N.W. 708; Dubois v. Riley Township Board, 126 Mich 587, 85 N.W. 1067, and Van Dyke v. Doughty, 174...