Goodspeed v. Goodspeed

• Decision Date: 06 January 1942
• Docket Number: No. 93.,93.
• Citation: 300 Mich. 371,1 N.W.2d 577
• Parties: GOODSPEED v. GOODSPEED.
• Court: Michigan Supreme Court

300 Mich. 371

1 N.W.2d 577

GOODSPEED

v.GOODSPEED.

No. 93.

Supreme Court of Michigan.

Jan. 6, 1942.

Action by John W. Goodspeed against Peggy R. Goodspeed for a divorce, wherein the defendant filed a cross bill. From a decree withdrawing the cross bill and dismissing plaintiff's bill of complaint, the plaintiff appeals, and defendant cross appeals.

Decree in accordance with opinion.

Appeal from Circuit Court, Kent County, in Chancery; William B. brown, judge.

Argued before the Entire Bench.

Thomas K. Perry and F. Roland Allaben, both of Grand Rapids, for appellant.

McCobb & Heaney and Seth R. Bidwell, all of Grand Rapids, for cross-appellant.

BOYLES, Justice.

Plaintiff appeals from a decree dismissing his bill for divorce. Appellant raises a preliminary question for consideration before the case can be decided on its merits, as follows: ‘May a cross-plaintiff withdraw her cross-bill after the opinion of the court has been rendered and she has become dissatisfied with the property settlement proposed, without the consent of the cross-defendant and without paying to cross-defendant his costs?’ This question is more completely stated in appellant's brief as follows:

‘Plaintiff does no challenge the right of the trial court to permit defendant to withdraw her cross-bill even after opinion of the Circuit Judge and when she is dissatisfied with property settlement, for that seems to be the rule in this state after the case of Merten v. Merten, 279 Mich. 33 (1937). But plaintiff does challenge the court's right to do this without following the rule (Rule #38) and obtaining the cross-defendant's consent and upon the payment of costs.’

The facts necessary to a decision of this question are as follows. Issue was joined upon appellant's bill of complaint, the answer and appellant's reply; and upon a cross-bill filed by the defendant and the answer of plaintiff (cross-defendant) thereto. The parties proceeded to trial and much testimony was taken which occupies 250 pages to the printed record. At its conclusion the court announced in a lengthy opinion that the plaintiff had failed to prove facts entitling him to a decree of divorce, and that the court would grant the defendant (cross-plaintiff) a decree upon her cross-bill. The court requested counsel to confer and try to work out a satisfactory agreement as to a property settlement. Apparently the parties failed to agree, whereupon the defendant, exercising her prerogative to change her mind, decided she did not want a divorce. Her counsel thereupon filed a motion to withdraw the cross-bill and dismiss the bill of complaint. On hearing this motion was granted over plaintiff's objection that the cross-bill could not be withdrawn without plaintiff's consent and payment of costs. The court entered a final decree withdrawing the cross-bill and dismissing plaintiff's bill of complaint.

In the Merten case, 279 Mich. 33, 271 N.W. 542, decided in 1937 under circumstances essentially the same as those in the case at bar, this Court held that a defendant (cross-plaintiff) might withdraw her cross-bill. This decision was based upon section 1, rule No. 38, Michigan Court Rules 1933, which at that time was as follows:

‘Plaintiff may, at any time, upon notice to the defendant or his attorney, and on the payment of costs, discontinue his suit by order filed in the cause, except where a recoupment or a set-off is asserted by the defendant.’

We held that this rule applied also to chancery cases. However, this rule was amended April 20, 1938, effective January 1, 1939, since the Merten case was decided, and before the case at bar was started. The words added by this amendment are indicated below and the rule now reads as follows:

‘Plaintiff may at any time, upon notice to the defendant or his attorney, and on the payment of costs, discontinue his suit by order filed in the court, except where recoupment or set-off is asserted by the defendant; and except where a defendant shall have entered upon his defense in open court, unless with the consent of the defendant. The like rule shall apply in respect to a party asserting a set-off, cross-bill or cross-declaration.’

In the case at bar the parties had entered upon their respective defenses in open court before the cross-plaintiff moved to withdraw her cross-bill. In fact, the taking of testimony had been completed by both parties and the cause submitted before cross-plaintiff sought and was allowed to withdraw her cross-bill without the consent of the cross-defendant and without payment of costs. The decree is in direct violation of the rule.

It is no answer to this obvious breach of the rule to say that the court might have reached the same result by denying the motion to withdraw and then entering a decree dismissing both the bill of complaint and the cross-bill. This would necessarily involve the question of costs. The court allowed defendant $1,621.60 attorney fees and costs in the decree dismissing the bill of complaint. The property of this allowance is questioned by plaintiff and the amount is also put in issue by the defendant on a cross-appeal.

Under the rule as amended, the court erred in allowing the defendant (cross-plaintiff) to withdraw her cross-bill after cross-defendant had entered upon his defense to the cross-bill, against his objection, and without payment of costs. The case stands upon the bill and cross-bill and the respective answers, with the proofs taken thereon in open court.

It would serve no useful purpose to enter into an extended discussion of the testimony....