Klopfenstein v. Rohlfing, 53

• Decision Date: 05 June 1959
• Docket Number: No. 53,53
• Citation: 356 Mich. 197,96 N.W.2d 782
• Parties: Ralph KLOPFENSTEIN, Jr. and Travelers Insurance Company, Plaintiffs and Appellees, v. Louis ROHLFING, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 782

96 N.W.2d 782

356 Mich. 197

Ralph KLOPFENSTEIN, Jr. and Travelers Insurance Company Plaintiffs and Appellees, v. Louis ROHLFING, Defendant and Appellant.

No. 53.

Supreme Court of Michigan.

June 5, 1959.

Deeb, Dunn & Elferdink, Grand Rapids, for plaintiffs and appellees.

Alexander, Cholette, Buchanan, Perkins & Conklin, Grand Rapids (Don V. Souter, Grand Rapids, of counsel), for defendant and appellant.

Before the Entire Bench.

BLACK, Justice.

This cause arrived in the Kent circuit on appeal from a judgment, entered for plaintiffs against defendant, in the municipal court of Grand Rapids. The appeal was perfected in 1955. March 4, 1957 a general order was entered in circuit providing 'that each of said causes hereinafter set forth (including the above) be and the same is hereby dismissed for want of prosecution, but without prejudice.' Plaintiffs later moved to vacate such order for reasons presently considered. Judge Searl, of the Kent circuit, prepared and filed an opinion by which the quoted order of dismissal was held invalid. An order in accordance with his opinion thereupon entered, the result being that of reinstatement of the appeal as a pending calendar cause. From such order we granted leave to appeal.

Judge Searl's opinion is carefully considered and reasoned. Being in agreement with such reasoning and the conclusion reached thereon, we adopt his opinion as our own. It follows:

'On December 5, 1955, a judgment was rendered in the municipal court of Grand Rapids, in favor of the plaintiffs and in the amount of $282.51.

'The case was appealed to the circuit court and the return of the justice filed on December 12, 1955.

'On the dismissal calendar for March 1957 term was placed this cause, there having been no progress for 1 year, and on March 4 of that year an order was entered 'that each of said causes hereinafter set forth be and the same is hereby dismissed for want of prosecution, but without prejudice.' The plaintiffs have now petitioned the court 'that the order of the court dismissing said cause be declared a nullity' and allege that the order was void by reason of the provisions of P.A.1947, No. 183 which added Section 21a to the chapter of the judicature act relating to appeals from justice court. C.L.1948, § 678.21a (Stat.Ann.1957 Cum.Supp. § 27.3501).

'The statute having to do with dismissal of cases for lack of progress for one year is found in chapter 18 of the judicature act and provides that 'all causes in which no action has been taken or progress made for more than 1 year * * * shall be dismissed by the court for want of prosecution. C.L.1948, § 618.2 (Stat.Ann. § 27.982). This section has been held applicable to justice court appeals. Miller v. Davis, 241 Mich. 544 .

'The chapter of the judicature act relating to appeals from justice court to the circuit court is applicable generally to the municipal court of Grand Rapids. C.L.1948, §§ 730.11, 730.351, C.L.1948, § 730.528 as added by P.A.1957, No. 79 (Stat.Ann. § 27.3761, Stat.Ann.1957 Cum.Supp. §§ 27.3784, 27.3937).

'Counsel for plaintiffs contend that C.L.1948, § 618.2 (Stat.Ann. § 27.982) relative to the dismissal of causes in which there has been no progrss for 1 year is no longer applicable to appeals from the justice court by reason of the passage of P.A.1947, No. 183.

'Section 21a of the chapter relating to appeals added in 1947 reads, 'If an appeal shall have been or shall be on the no progress docket of the circuit court for a period of 2 years, on motion the appeal shall be dismissed and the appellee shall not be entitled to prosecute the bond or recognizance given on appeal.'

'It is plaintiffs' contention that the provisions of this last quoted section exclusively govern the matter of dismissals for no progress in cases appealed to the circuit court from the municipal court of Grand Rapids.

'Defendant contends that the provisions of C.L.1948, § 618.2 (Stat.Ann. § 27.982) remain applicable. He points out that the Supreme Court has recognized a distinction in the result of orders by which 'the cause' is dismissed and of orders by which 'the appeal' is dismissed.

'In Miller v. Davis, supra [241 Mich.], 546 , the Court said, 'The law is well settled in this State that a discontinuance of an appeal is not the same as a discontinuance or dismissal of a suit. French v. Weise, 112 Mich. 586 . When an appeal is dismissed or discontinued, the judgment rendered in the justice's court may be revived (C.L.1915, § 14420}; but, the discontinuance of a suit or cause concludes the litigation. The same result follows the dismissal of a case that has been brought into the circuit court by appeal as follows the dismissal of a case originally instituted in the circuit. * * * In the instant case, the order of the circuit court was 'This cause is hereby dismissed without prejudice.' This order obviously terminated all proceedings therein.'

'In Hailey v. Saginaw Justice of the Peace, 320 Mich. 59 , the order of the circuit court was that the 'appeal' was dismissed for want of progress. The court held that the judgment in the justice court remained valid, citing and quoting section 20 of the chapter on appeals (C.L.1948, § 678.20 [Stat.Ann. § 27.3500]). The Court said ([320 Mich. at page] 63 ), 'However, there is a distinction between the dismissal of an appeal and the dismissal of a suit. The dismissal of a suit or case concludes the litigation, see Miller v. Davis, supra, and Northing v. Jay, 262 Mich. 463 , but in the dismissal or discontinuance of an appeal, the judgment of the justice court is revived, see French v. Weise, 112 Mich. 586 .'

'And counsel for the defendant points out that section 21a added by the 1947 amendment expressly relates only to the dismissal of appeals and that the order in this case dismissed the cause under the provisions of C.L.1948, § 618.2 (Stat.Ann. § 27.982).

'It must be confessed that the wording of the 1947 amendment leaves much to be desired in the interest of clarity.

'It uses the term 'no progress docket.' Does this mean the no progress 'calendar' created by C.L.1948, §§ 618.2, 618.4 (Stat.Ann. §§ 27.982, 27.984), or is there to be created a 'docket' upon which at some stage of the proceedings appeal cases are to be placed and remain for a period of 2 years?

'Or is the section to be construed as meaning that after there has been no progress in an appeal case for 2 years, the case shall then be disposed of as a no progress case?

'These questions do not have to be answered here. This case was not 2 years old in the circuit court when it was dismissed. And under neither of the above possible constructions could it have been dismissed under the provisions of the 1947 amendment.

'On the other hand, if the case could be dismissed under C.L.1948, § 618.2 (Stat.Ann. § 27.982), then the order of March 4, 1957 was valid.

'While there is much force in defendant's position that [said section] has not been repealed or amended and that it remains applicable to appeal cases in which there has been no progress for 1 year, there is, it seems to me, one insuperable objection to that position.

'If that section is applicable to appeal cases, then the 1947 amendment is rendered wholly meaningless.

'As pointed out, C.L.1948, § 618.2 (Stat.Ann. § 27.982) is mandatory and requires...