City of Detroit v. Donovan

• Decision Date: 27 April 1897
• Citation: 112 Mich. 317,70 N.W. 894
• Court: Michigan Supreme Court
• Parties: CITY OF DETROIT v. DONOVAN, CIRCUIT JUDGE.

70 N.W. 894

112 Mich. 317

CITY OF DETROIT v. DONOVAN, CIRCUIT JUDGE.

Supreme Court of Michigan

April 27, 1897

Application on the relation of the city of Detroit for a writ of mandamus to compel J. W. Donovan, circuit judge, to vacate an order. Granted.

Charles D. Joslyn and Arthur Webster, for relator.

James H. Pound, for respondent.

LONG C.J.

In July, 1896, Augusta Ambuhl commenced suit against the relator for personal injuries. The relator failed to appear or plead within the time prescribed by the rules of court, and on August 24, 1896, its default was taken. On the next day the relator tendered a plea and notice attached thereto, together with $10 as costs, and asked to have the default set aside. This the plaintiff's attorney refused to receive, and relator thereupon made a motion to the court to set aside the default, and that it be permitted to plead in the cause. The court set aside the default and received the plea, but struck therefrom the notice. Relator now asks a mandamus to compel the respondent to vacate so much of the order as relates to the notice; and a return has been made by the respondent setting out the reasons why the notice should not be permitted to stand in the case, as follows: (1) That it was within the jurisdiction of the trial court, in setting aside the default, to impose such condition as to the court might seem reasonable and just; (2) that no proofs would be permitted to be made under the notice, as the statute to which the notice relates is unconstitutional. The notice is as follows: "That on the trial of the above-entitled cause the defendant, the city of Detroit, will give in evidence in its defense that no notice in writing was given to the head of the law department or to its chief assistant of the time, place, cause, and nature of the injury set forth in plaintiff's declaration within three months of the time of such injury, as provided by the statute in such cases." The statute to which this notice relates is as follows: "There shall be added to chapter eleven of said charter of the city of Detroit a new section, as follows 'Sec. 46. No action shall be brought against said city nor any of its boards, commissions or officers, for any negligent injury unless it be commenced within one year from the time when the injury was received, nor unless notice shall be given in writing within three months from the time of such injury to the head of the law department...