Laster v. Gottschalk

• Decision Date: 30 August 1972
• Docket Number: Docket No. 12785,No. 2,2
• Citation: 42 Mich.App. 596,202 N.W.2d 562
• Parties: Elayne LASTER, by her next friend, Nadine Laster, and Nadine Laster, Individually, Plaintiffs-Appellees, v. Charles GOTTSCHALK and Ronald Gottschalk, jointly and severally, Defendants-Appellees, and Board of County Road Commissioners of the County of Macomb, Defendant- Appellant
• Court: Court of Appeal of Michigan — District of US

Page 562

202 N.W.2d 562

42 Mich.App. 596

Elayne LASTER, by her next friend, Nadine Laster, and Nadine Laster, Individually, Plaintiffs-Appellees, v. Charles GOTTSCHALK and Ronald Gottschalk, jointly and severally, Defendants-Appellees and Board of County Road Commissioners of the County of Macomb Defendant- Appellant.

Docket No. 12785.

Court of Appeals of Michigan, Division No. 2.

Aug. 30, 1972.

Released for Publication Dec. 11, 1972.

Robert S. McKenzie, Daner, Freeman, McKenzie & Matthews, Mt. Clemens, for defendant-appellant.

Noel A. Gage, Southfield, for Laster.

Roger F. Wardle, Detroit, for Gottschalk.

Before DANHOF, P.J., and LEVIN and BORRADAILE ^*, JJ.

BORRADAILE, Judge.

This interlocutory appeal from Oakland County Circuit Court on leave granted was submitted to us on the following agreed statement of facts.

'1) Litigation commenced on January 20, 1971, between ELAYNE LASTER, BY HER NEXT FRIEND, NADINE LASTER, AND NADINE LASTER, INDIVIDUALLY, as Plaintiffs -vs- CHARLES GOTTSCHALK, a resident of Frankenmuth, Michigan, and RONALD GOTTSCHALK, a resident of Kinde, Michigan, as Defendants, resulting from an automobile accident occurring in Macomb County, Michigan, on January 1, 1971.

'2) Answer by Defendants GOTTSCHALK on February 17, 1971.

'3) Motion by Defendants GOTTSCHALK to add BOARD OF COUNTY ROAD COMMISSIONERS OF THE COUNTY OF MACOMB as Third Party Defendant on March 18, 1971.

'4) Order adding BOARD OF COUNTY ROAD COMMISSIONERS OF THE COUNTY OF MACOMB as Third Party Defendant on March 31, 1971.

'5) BOARD OF COUNTY ROAD COMMISSIONERS OF THE COUNTY OF MACOMB served with Third Party Complaint on June 2, 1971.

'6) Motion for Change of Venue Improperly Laid filed by BOARD OF COUNTY ROAD COMMISSIONERS OF THE COUNTY OF MACOMB on June 28, 1971.

'7) Order entered by the Court to add the BOARD OF COUNTY ROAD COMMISSIONERS OF THE COUNTY OF MACOMB as principal party Defendant entered upon stipulation of attorneys, NOEL A. GAGE, for Plaintiffs, and ROGER F. WARDLE, for Defendants GOTTSCHALK on June 30, 1971.

'8) First Amended Complaint filed by Plaintiffs on July 7, 1971.

'9) Answer by Defendants GOTTSCHALK to Plaintiffs' Amended Complaint filed on July 16, 1971.

'10) BOARD OF COUNTY ROAD COMMISSIONERS OF THE COUNTY OF MACOMB served with Plaintiffs' Amended Complaint on August 31, 1971.

'11) Oral argument before the Court on Motion by BOARD OF COUNTY ROAD COMMISSIONERS OF THE COUNTY OF MACOMB for Change of Venue Improperly Laid held on August 4, 1971, at which time the Court ruled that it would allow Plaintiffs ten days to amend their Complaint to add the BOARD OF COUNTY ROAD COMMISSIONERS OF THE COUNTY OF MACOMB as a principal-party Defendant, and upon the failure of the Plaintiffs to so act within said time, the Court would enter an Order granting the Motion for Change of Venue Improperly Laid.

'12) Oral argument on Motion for Rehearing by Defendant BOARD OF COUNTY ROAD COMMISSIONERS OF THE COUNTY OF MACOMB, on Motion for Change of Venue Improperly Laid held on the 15th day of September, 1971, at which time the Court denied said Motion by Order, a true copy of which Order has been previously filed with This Honorable Court, on the premise that if the BOARD OF COUNTY ROAD COMMISSIONERS OF THE COUNTY OF MACOMB was a principal Defendant it would have no basis to object to Venue Improperly Laid, and as a basis for said denial made inquiry of the Plaintiffs and Defendants as to where the proposed witnesses to be called in said cause of action were located. BOARD OF COUNTY ROAD COMMISSIONERS OF THE COUNTY OF MACOMB reiterated that whether or not it was a third party Defendant or a principal Defendant, and whether or not the remaining Defendants waived objection to Improper Venue, the BOARD OF COUNTY ROAD COMMISSIONERS OF THE COUNTY OF MACOMB upon timely objection, could still insist on Change of Venue, and that Change of Venue under GCR 1963, 404 was mandatory.'

The sole issue is: When venue is improper as to all parties but it has been waived by the original defendants can a subsequently added defendant make a timely objection to the venue under GCR 1963, 404?

The parties agree that the cause of action arose in Macomb County and that the Board of County Road Commissioners of the County of Macomb is established in Macomb County. They also agree that defendants Charles and Ronald Gottschalk are not residents of Oakland County, but that by filing an answer to the complaint they waived objection to the venue being improperly laid. The defendants-appellees maintain that by waiving their objection to venue they established a proper venue and when the defendant Board was added as a defendant is could not object to venue under GCR 1963, 404 which makes a change of venue mandatory. The Gottschalks argue that defendant Board had to make its objection under either GCR 1963, 406(2), or 407 which leave a change of venue a matter for the discretion of the court.

GCR 1963, 404 reads:

'The venue of any civil action improperly laid shall be changed by order of the court on timely motion by any defendant, or may be changed by the court on its own motion. The court shall order the change at plaintiff's cost, which may include reasonable compensation for defendant's expense, including reasonable attorney's fees, in attending in the wrong county. No further proceedings shall be had in the case after transfer until the costs and expenses allowed under this Rule have been paid, and if they are not paid within 60 days from the date of the order of change of venue the case shall be dismissed by the court to which it was transferred.'

This Court said in DesJardin v. Lynn, 6 Mich.App. 439, 443, 149 N.W.2d 228 (1967), that change of venue is mandatory, not discretionary, under this court rule when a timely motion is made and venue is improperly laid.

GCR 1963, 406 reads:

'When causes of action are joined and when 1 or more of the causes of action, had separate actions been filed, would not have been proper in the county where venue for the joined action is laid, a defendant may move the court to separate the causes of action so joined and to transfer the cause or causes of action for which venue would not have been proper to a proper county.

'(1) Improper Joinder. If such causes of action were improperly joined, the court must, on timely motion, order the cause or causes for which venue would not have been proper transferred to a proper county, at plaintiff's cost, which may include...