Foster v. Talbot
| Decision Date | 02 March 1932 |
| Docket Number | No. 173.,173. |
| Citation | 241 N.W. 141,257 Mich. 489 |
| Parties | FOSTER v. TALBOT et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wayne County; De Witt H. Merriam, Judge.
Suit by Frank M. Foster against Charles R. Talbot and another, copartners and individually. Defendants' motion to set aside default and judgment was granted, and plaintiff appeals.
Affirmed.
Argued before the Entire Bench.Atkinson, Ortman & Shock, of Detroit (Frank W. Atkinson, of Detroit, of counsel), for appellant.
Slyfield, Hartman & Mercer, of Detroit, for appellee Montgomery Whaling.
This suit was commenced by summons, issued November 14, 1930, with February 13, 1930, as return day, stating damages not to exceed $25,000. Service was made November 18, 1930. Defendant did not appear, and judgment by default was taken for $43,599.81. on January 24, 1931. August 28, 1931, defendant filed a motion to set aside the default and judgment alleging that, when the summons was served, the deputy sheriff, making the service, called attention to the fact that, while the summons was issued in November, it required service on or before the previous February, and the defendants need not pay any attention thereto, and, relying thereon, no attention was given the matter; also that the summons set the damages at $25,000, and judgment was taken for a much greater sum. The circuit judge set the default and judgment aside, and allowed time for appearance and plea. Plaintiff reviews by appeal, duly authorized.
The mistake in the return day of the summons was clearly of a clerical nature, and could not mislead defendants, for the summons required them to enter their appearance, within fifteen days after service, if they cared to make a defense. Gould v. Castel, 47 Mich. 604, 11 N. W. 403;Low v. Mills, 61 Mich. 35, 27 N. W. 877;Whitmore v. Behm, 22 N. D. 280, 133 N. W. 300.
In Clutterbuck v. Wildman, 2 Tyrw. (Eng.) 276, a writ of quo minus was tested November 25, 1831, was served December 29, 1831, with notice to appear on January 11, 1831, and it was held that: ‘The mistake of inserting 1831 instead of 1832 in the notice to appear, was not such as to mislead the defendant, who might well understand what the period was to which it really referred.’
There is no merit in this point.
The purpose of stating the maximum claim of damages in the summons is to give notice to the defendant of the extent of plaintiff's claim.
More than six months having elapsed after the default and judgment, plaintiff invokes the court rule, former Rule No. 32, present Court Rule No. 28, against setting aside...
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...v. Rooney (1892), 93 Mich. 390, 393, 53 N.W. 539; Colling v. McGregor (1906), 144 Mich. 651, 653, 108 N.W. 87; Foster v. Talbot (1932), 257 Mich. 489, 492, 241 N.W. 141; Smak v. Gwozdik (1940), 293 Mich. 185, 192, 291 N.W. 270. See, also, 7 Callaghan's Michigan Pleading and Practice § 44.31......
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