Haenlein v. Saginaw Bldg. Trades Council, AFL, 486

• Decision Date: 16 September 1960
• Docket Number: A,No. 53,No. 486,486,53
• Citation: 105 N.W.2d 166,361 Mich. 263
• Parties: Andrew J. HAENLEIN, Plaintiff and Appellee, v. SAGINAW BUILDING TRADES COUNCIL, A.F.L., et al., Defendants, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union, and Nell Dalton, Jr., Defendants and Appellants. pril Term.
• Court: Michigan Supreme Court

Page 166

105 N.W.2d 166

361 Mich. 263

Andrew J. HAENLEIN, Plaintiff and Appellee, v. SAGINAW BUILDING TRADES COUNCIL, A.F.L., et al., Defendants, and International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, Local Union

No. 486, and Nell Dalton, Jr.,

Defendants and Appellants.

No. 53, April Term.

Supreme Court of Michigan.

Sept. 16, 1960.

David Previant, George S. Fitzgerald, Detroit, and Vandeveer, Haggerty, Garzia & Haggerty, Detroit, for appellants.

Gilbert & Gilbert, Saginaw, and Martin & Martin, Saginaw, for appellee.

Before the Entire Bench.

BLACK, Justice (for affirmance).

The tie game played by Moody against Carnegie a year ago (356 Mich. 434, 97 N.W.2d 46) did but forecast our disagreement in this case.

Having bumped my own way through this Court's bulbous verbosity of dissertation, upon the supposed elasticity of time-limitations appearing in Court Rules 28 and 48, I find the field clear for independent judgment that a personally served defendant (or plaintiff for that matter), seeking by late motion or application to avoid his entered default (on strength of which due proceedings have been taken), may do so only by charging and proving that his litigant opponent has committed a fraud, upon him or the court, either in bringing about entry of such default or in the inducement of inaction by such personally served defendant. Such judgment shortens the present opinion, which is well.

In Moody the total time allowed--by Court Rule 48--for application for rehearing had expired. Here the corresponding time allowed by Court Rule 28--for setting aside the default of defendants Dalton and International Brotherhood--had expired more than 8 months prior to filing of the present petition for rehearing. It is not claimed that plaintiff, in the proceedings leading up to entry of such default or, for that matter, in the course of proceedings thereafter, was guilty of fraud or other deception which, according to recognized exception, would relieve such defendants from the limitational consequences of said Rule 28. Further, and as against the claim of these defendants that entry of their default was irregular, I agree with Judge Bach that the default proceedings were meticulously proper and that such defendants were repeatedly and promptly notified thereafter, not only of the fact of entry of their default, but of impending trial of the cause.

No heed was given, by defendants Dalton and International Brotherhood, to any of these notices. The last one was given by the assignment clerk of the court. By it counsel of record were notified, under date of October 9, 1958, that the cause would come on for trial Cotober 21, 1958 (which it did). Between the date of such notice and the stated date of trial, Milwaukee counsel appearing for defendants Dalton and International Brotherhood wrote a Saginaw representative of defendant Local Union No. 486 as follows:

'We received notice from William L. Hellerman that the Haenlein case was set for trial on October 21, 1958. We understand that the Teamsters have no interest in the Haenlein Company and do not desire to litigate the issues involved in that case. We suggest that your local attorney inform the court and the plaintiff's counsel of this fact with the view in mind of having the Teamsters dismissed as a party by stipulation.'

This letter, proving as it does timely knowledge of counsel that hearing of the cause was imminent and that a decision 'not to litigate' had been reached, fully supports the chancellor's summary conclusion 'that there was no intention on the part of defendants [referring to defendants Dalton and International Brotherhood] to defend the action.'

In denying this application for rehearing, the chancellor rightfully followed the rule of White v. Sadler, 350 Mich. 511, 87 N.W.2d 192, that is to say 'Our Court has traditionally been strict on setting aside defaults once regularly entered. Where a default following personal service is regularly taken the court rule providing that it shall not be set aside after a certain time (presently 4 months) has generally been regarded as mandatory (Hensey v. Hensey, 331 Mich. 518, 50 N.W.2d 308; Gombasy v. Gombasy, 318 Mich. 139, 27 N.W.2d 517; Watkins v. Wayne Circuit Judge, 247 Mich. 237, 225 N.W. 554), and this rule, however harsh, has been subject to few exceptions, the most notable being that of fraud (Hensey v. Hensey, supra), which is not urged or suggested here.' (quotation from White, 350 Mich. at pages 521, 522, 87 N.W.2d at page 198.)

An application for rehearing under Rule 48, by a party in default, provides no means of getting around the time-limitation of Rule 28, which is to say that these defendants presently have no standing to apply under Rule 48 for rehearing. Their default has never been set aside. Nor has any petition or motion to vacate such default been submitted. Consequently, this application was out of order and is now out of order. See to the point McInerney's, Inc. v. Dunford, 341 Mich. 477, 67 N.W.2d 727.

A final question is raised; that no state court may entertain jurisdiction over a case 'which originated with an employer's charge of unfair labor practices against unions in an industry which affects commerce,' unless there is 'proof of violence.' Our recent decision in Town & Country Motors v. Local Union No. 328, 355 Mich. 26, 94 N.W.2d 442, is cited in support.

In my view this jurisdictional question was not open to consideration below, nor is it here, for want of fact-proof of its decisive premises. See Austin v. Painters' District Council, 339 Mich. 462, 484, 485, 64 N.W.2d 550, 562. There the defendants, by 'petition to reopen the cause for certain purposes,' sought without success to introduce a corresponding defense of exclusively federal jurisdiction. Sometimes, jurisdictional questions need proof to make them effective. That is true here. The asserted want of jurisdiction does not appear in or on the face of the record.

I would affirm, with costs to plaintiff.

Supplement (July 12, 1960):

This case was duly assigned to the writer prior to submission thereof during the April term. In pursuance of such assignment the foregoing opinion was submitted for consideration of our membership on May 11, 1960. Now, under term-delayed date of June 30, Justices Carr and Smith have gotten around to writing that the Court should pursue other and separate courses toward appellate judgment. One would affirm with explanation of what he has written in Moody v. Carnegie, 356 Mich. 434, 97 N.W.2d 46. The other would reverse for want of determination below of a question of jurisdiction, pleaded affirmatively by these defaulted defendants, the validity of which question depended below and depends now on defensive-essential proof the defaulted labor union chose not to present.

My Brother Carr, bolstering his extended writing in Moody, refers to the allegedly defrauded party (in that case) as 'an elderly widow.' The 'elderly widow,' for whom my Brother bleeds anew, was shown in the cited case as having been party to a secret agreement for champertous maintenance of the suit; her share of the litigious spoils to be $250 in event of success with the subject realty going to the thoroughly concealed real party in interest (one Frank B. Donohue). For Justice Carr's conclusionary presentation of these facts, see 356 Mich. at page 436, 97 N.W.2d at page 47. For my presentation thereof, with direct quotation of the agreement to sue in the name of the 'elderly widow,' see pages 450 and 451 of the same volume, at page 54 of 97 N.W.2d.

I would say this only, by way of compendious reply to my Brother's bootstrap review of Moody: At first writing Justice Carr warily refrained from saying who perpetrated the 'fraud' as found by him. Writing in today's case, he is yet unwilling to name and so accuse the alleged perpetrator. One thing is sure. Defendant Carnegie and his counsel were innocent of fraud, or participation in the commission of fraud. So, if 'fraud' really did taint the plan and the presentation of the suit brought in Mrs. Moody's name, was it not committed exclusively by some one or all of those who participated in the illegal agreement to sue and divide?

Aside from the above, both opinions of Moody speak for themselves. One group would insert a stretchable-at-will number of weeks, months, or years in the time-limitational periods of rules 28 and 48. The other group would not. Such being the divisive state of things, how trustworthy--anyway--are limitations of time by court rule? Let troubled lawyers answer in the safe privacy of Michigan law offices, seasoning their speech with salt, ¹ and let them invent more and more arbitrational ways of keeping their clients out of our courts.

As for Mr. Justice Smith's opinion, I can say only that my signature will never sanction the mere pleading, of crossed jurisdictional fingers tagged 'you can't touch us,' as a means of forcing the trial court to investigate and record the evidentiary facts which deny or uphold local jurisdiction under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. That burden rests on the affirmative pleader, and our trial courts are not to be toyed with by the practice of depositing such a pleading and then ignoring the court. Which is to say that this defendant labor union should have presented proof in support of its jurisdiction plea if possessed of such proof. There being no such proof, clear jurisdiction to proceed appeared below and now appears on the face of this record.

Today's question of jurisdiction is simple of presentation: Did the court have power to enter upon the inquiry presented by the pleadings? The very nature of its self-styled 'affirmative defense' is an admission by the defendant union of a 'yes' answer. By that plea the union asked the court to receive evidence in support thereof and, upon such evidence, to find judicially that it--the union--was...