Lantinga v. Lantinga

• Decision Date: 16 May 1947
• Docket Number: No. 428.,428.
• Parties: LANTINGA v. LANTINGA.
• Court: Michigan Supreme Court

318 Mich. 78

27 N.W.2d 504

LANTINGA

v.LANTINGA.

No. 428.

Supreme Court of Michigan.

May 16, 1947.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County, in Chancery; Guy A. Miller, judge.

Suit for divorce by Al Lantinga against Eva Lantinga. From an order setting aside a pro confesso decree of divorce granted to plaintiff and permitting defendant to file answer and cross-bill, plaintiff appeals in the nature of mandamus with accompanying certiorari.

Order affirmed.

Before the Entire Bench.

Irving Goldsmith, of Detroit (Stewart A. Ricard, of Detroit, of counsel), for plaintiff and appellant.

Dudley E. Whiting and Allen H. Blondy, both of Detroit (Joseph J. Geraci, of Detroit, of counsel), for defendant and appellee.

NORTH, Justice.

In this divorce case plaintiff was granted leave to appeal in the nature of mandamus with accompanying certiorari from an order of the trial court setting aside a proconfesso decree of divorce granted to plaintiff and permitting defendant to file an answer and cross-bill. The relief sought on this appeal is that this Court order the trial court to vacate the above mentioned order. Plaintiff asserts that by reason of Michigan Court Rule No. 48, § 1, the trial court was without power to set aside its former decree. The pertinent portion of the rule reads:

‘Section 1. On proper cause shown, a rehearing of an equitable action may be had. No application for such rehearing shall be heard unless filed within 2 months from the entry of the final decree, except where application is made on the ground of newly-discovered evidence, in which case the application must be filed within 4 months.'

The decree of divorce was entered August 22, 1945. Defendant's petition to have the decree set aside was filed March 7, 1946. Obviously defendant's petition was filed more than 4 months after entry of the decree; but in construing and applying Court Rule No. 48 (or former rules of like purport) we have repeatedly held either expressly or by plain implication that the rule should not be strictly applied in cases where the judgment or decree was fraudulently obtained. See John W. Masury & Son v. Lowther, 299 Mich. 516, 300 N.W. 866;Geib v. Kent Circuit Judge, 311 Mich. 631, 19 N.W.2d 124. In Naylor v. Washtenaw Circuit Judge, 250 Mich. 698, 231 N.W. 85, 86, we said: ‘A rehearing may not be granted after the lapse of four months from entry of final decree, in the absence of a showing of fraud. Union Trust Co. v. Detroit Trust Co., 240 Mich. 646, 216 N.W. 442.’ See also Central Trust Co. v. Breitenwischer, 259 Mich. 532, 244 N.W. 153;Stabley v. Lumber & Wrecking Corp., 286 Mich. 558, 282 N.W. 243. And in Fries v. Wonnacott, 270 Mich. 86, 258 N.W. 219, 221, we said:

‘In Hughes v. Wayne Circuit Judge, 239 Mich. 110, 214 N.W. 175, we held that, although the right of the party to move for a rehearing was lost after the prescribed period had expired, this did not mean that the court no longer had power over its own decrees, and the court might order a rehearing sua sponte.'

To hold otherwise than indicated in the above cited cases would be to defeat rather than to administer justice. In the instant case, the record is replete with a showing of fraud on the part of plaintiff in the conduct of the divorce proceedings, and that showing under oath by defendant is not met by any counter-showing by plaintiff under oath. Plaintiff perpetrated a fraud on the trial court by deliberately leading the court to believe that since the alleged date of separation plaintiff and defendant had not...