Hurt v. Cambridge

• Decision Date: 06 February 1970
• Docket Number: No. 3,Docket No. 6985,3
• Citation: 176 N.W.2d 450,21 Mich.App. 652
• Parties: Muriel HURT, Plaintiff-Appellant, v. Vernal W. CAMBRIDGE, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 450

176 N.W.2d 450

21 Mich.App. 652

Muriel HURT, Plaintiff-Appellant, v. Vernal W. CAMBRIDGE, Defendant-Appellee.

Docket No. 6985.

Court of Appeals of Michigan, Division No. 3.

Feb. 6, 1970.

Released for Publication May 1, 1970.

Leave to Appeal Denied Sept. 25, 1970.

Max Dean, Leitson, Dean, Dean, Segar & Hart, Flint, for appellant.

Moll, Desenberg, Purdy, Glover & Bayer, Detroit, for appellee.

Before GILLIS, P.J., and McGREGOR and QUINN, JJ.

GILLIS, Presiding Judge.

Plaintiff, Muriel Hurt, appeals from a final order of dismissal entered by the circuit court for the county of Saginaw in favor of defendant, Vernal Cambridge, dismissing with prejudice plaintiff's suit for lack of prosecution.

On May 5, 1965, plaintiff commenced this medical malpractice action against defendant physician. Defendant's answer, together with a motion for summary judgment and to strike portions of the complaint, was filed on May 24, 1965. Two days later, plaintiff demanded trial by jury. Thereafter, no action was taken by either party and on July 14, 1966, the case appeared on the trial court's no-progress calendar for dismissal on September 12, 1966.

On August 29, 1966, plaintiff filed a motion seeking removal of the case from the no-progress calendar. ¹ Accompanying this motion was an affidavit wherein plaintiff's attorney asserted that the case was ready for immediate trial. On the same date, plaintiff praeciped the case for trial. ² Subsequently, on August 31, 1966, the trial judge, without affording defendant an opportunity to be heard, ³ signed an order submitted by plaintiff removing the case from the no-progress calendar.

On September 12, 1966, defendant filed a motion to set aside the court's order removing the case from the no-progress calendar and to dismiss the case for lack of prosecution. A notice of hearing accompanied the motion, but it was not praeciped at this time. It was defendant's contention that the affidavit accompanying plaintiff's motion to remove was insufficient under the local court rule, ⁴ since no reasons for lack of progress were set forth in the affidavit. Plaintiff's attorney then filed a supplemental affidavit in support of the motion to remove, asserting that the lack of progress was the result of his inadvertent failure to praecipe the case for trial.

On August 15, 1968, 23 months after it was filed, defendant praeciped the motion to vacate and to dismiss for hearing and on August 19, 1968, oral arguments were presented on the motion. In a written opinion dated January 23, 1969, the trial court granted defendant's motion to set aside the prior order of removal and dismissed the action for lack of progress. This appeal followed.

On appeal, both parties suggest that the question which we must decide is whether the trial court abused its discretion in dismissing plaintiff's action for lack of prosecution. Both parties address their arguments to the situation as it existed upon plaintiff's motion to remove the case from the no-progress docket. Plaintiff contends that the failure to praecipe the case for trial is not such a want of prosecution as would justify dismissal. Defendant contends that the explanation offered by way of plaintiff's supplemental affidavit for failure to praecipe is not such an excuse as would justify removal of the case from the no-progress docket.

We agree with the suggestion of the parties that the controlling question on this appeal is whether the trial court abused its discretion in dismissing plaintiff's action. As this case reaches us, its posture is comparable to that which exists upon a motion to reinstate a cause after dismissal for lack of progress pursuant to GCR 1963, 501.3. In the latter situation, the question of reinstatement is a matter within the discretion of the trial court. Robinson v. Washtenaw Circuit Judge (1928), 242 Mich. 548, 219 N.W. 661; Hoad v. Macomb Circuit Judge (1941), 298 Mich. 462, 299 N.W. 146; Reynolds v. Dobbertin (1962), 366 Mich. 162, 113 N.W.2d 888; Corley v. Krawczak (1969), 16 Mich.App. 176, 167 N.W.2d 783. The trial judge must determine whether good cause has been shown why an order reinstating the case should issue. We think issuance of an order, such as in this case, ⁵ denying removal of a case from the no-progress docket is likewise within the trial court's discretion. It follows that we cannot reverse the order here challenged unless we are satisfied that the trial court abused its discretion in denying removal and dismissing plaintiff's action. Moreover, as defendant suggests, our review is restricted to determining whether there is any justification in the record for the ruling of the trial court.

"To warrant such interference, the abuse ought to be so plain that upon consideration of the facts upon which the trial judge acted, an unprejudiced person can say that there was no justification or excuse for the ruling made." Hoad v. Macomb Circuit Judge, Supra, 298 Mich. at 468, 299 N.W. at 149, quoting Cooper v. Carr (1910), 161 Mich. 405, 412, 126 N.W. 468.

Defendant contends that plaintiff's failure to praecipe the case for trial justifies an order denying removal from the no-progress docket. On the record before us, we cannot agree.

At common law, the failure to prosecute a cause with due diligence exposed neglectful parties to judgments of nonsuit and non prosequitur. 3 Blackstone, Commentaries (1768), 295--296. In Abe Stein Co. v. Wood (1908), 151 Mich. 657, 115 N.W. 1046, the Court construed a statutory provision ⁶ codifying the common-law practice. Plaintiff's action, as in this case, had been dismissed for lack of prosecution. As here, the ground relied upon as justifying dismissal was plaintiff's failure to notice the case for trial. The Court, however, noted that under rules of practice then in effect a defendant had equal rights to praecipe for trial. Since defendant had likewise failed to notice the case for trial, he was "deemed tacitly to assent to the delay." 151 Mich. at 660, 115 N.W. at 1047, quoting 1 Green's New Practice (2d ed), p. 499. Accord, Joy v. Two-Bit Corporation (1938), 287 Mich. 244, 283 N.W. 45. ⁷ The Court concluded:

'We are therefore of the opinion that since the adoption of rule 54 (permitting defendant to praecipe for trial), the reason for dismissing a cause for want of notice, * * * no longer exists, and that Some neglect to bring said cause to trial, other than a mere failure to notice the cause, should be shown before a nonsuit should be ordered.' 151 Mich. at 661, 115 N.W. at 1047. (Emphasis supplied.)

In the present case, it is clear that defendant possessed equal rights to notice the case for trial. The case was at issue, ⁸ and under the local rules of practice then in effect, 'any attorney desiring to obtain a trial or hearing thereof shall fill a praecipe for hearing with the Clerk * * *.' Rule No. 3, Part I, Saginaw County Circuit Court Rules. (Emphasis supplied.) That no proceedings were taken in this case within 1 year of plaintiff's demand for jury trial cannot be attributed to plaintiff alone. Defendant himself failed to praecipe the case for trial. Abe Stein Co. v. Wood, Supra; Joy v. Two-Bit Corpoaration, Supra.

In Sayre v. Detroit, Grand Haven & Milwaukee Railway Co. (1917), 199 Mich. 414, 165 N.W. 859, the Court, by way of dictum, answered the very question now before us. In Sayre, plaintiff's action had been dismissed for lack of progress. A statute then in effect provided for dismissal of actions where no action had been taken for more than 1 year, unless cause was shown to the contrary. ⁹ As in the present case, the action appeared on the no-progress calendar as a result of plaintiff's failure to notice the case for trial. In reversing the dismissal, the Court noted at 421, 422, 165 N.W. at 861:

'But when the motion of defendant was made in the case at bar, it stood in form upon the records of the court at issue, ready for trial. A notice from either party would have placed it upon the trial docket. * * * Assuming that (the trial court) had authority and that the question of judicial discretion and its abuse is before us, no default of plaintiff except failure to bring the cause on for trial is involved, for which defendant at all times had a remedy by itself bringing the cause on for trial.' (Emphasis supplied.)

Both Abe Stein Co. v. Wood, Supra, and the Sayre Case appear to require the conclusion that it is an abuse of discretion for a trial court to deny removal of a case from the no-progress docket, or to deny reinstatement after dismissal, solely on the ground that plaintiff failed to praecipe for trial. We need not, however, decide whether defendant's failure in this case to notice for trial, standing alone, required removal of the case from the no-progress docket. We hold only that defendant's acquiescence in the year's delay was one among other relevant circumstances to be considered upon plaintiff's motion to remove.

In its opinion granting defendant's motion to dismiss for lack of prosecution, the trial court, although the question was before it, did not expressly decide whether plaintiff had shown sufficient justification for removal of the case from the no-progress docket. We find it necessary, however, to decide the question of justification since the issue is properly before us and, if resolved in defendant's favor, it affords grounds for affirmance.

Both GCR 1963, 501.3, and the circuit court rules for the county of Saginaw justified placement of plaintiff's action on the trial court's no-progress docket. It is undisputed that no proceedings were taken in this case within 1 year of the last calendar entry--plaintiff's demand for a jury trial. However, upon plaintiff's timely motion for removal from the no-progress docket, the case was not subject to dismissal,

'If at the call it is shown that the failure to take steps or proceedings is not due to the plaintiff's fault or lack of reasonable diligence on his part * * *.'...