Leo v. Atlas Industries, Inc., 18

• Decision Date: 01 October 1962
• Docket Number: No. 18,18
• Citation: 370 Mich. 400,121 N.W.2d 926
• Parties: August LEO, d/b/a Leo's Construction Co., Plaintiff and Appellee, v. ATLAS INDUSTRIES, INC., a Michigan corporation, Defendant and Appellant. ,
• Court: Michigan Supreme Court

Page 926

121 N.W.2d 926

370 Mich. 400

August LEO, d/b/a Leo's Construction Co., Plaintiff and Appellee, v. ATLAS INDUSTRIES, INC., a Michigan corporation, Defendant and Appellant.

No. 18, Oct. Term, 1962.

Supreme Court of Michigan.

June 3, 1963.

Frank E. Jeannette, John J. Goetz, Mt. Clemens, of counsel, for plaintiff and appellee.

Kahn & Kahn, by Kenneth Kahn, Detroit, on the Brief. Dickinson, Wright, McKean & Cudlip, Glenn D. Curtis, Detroit, of counsel, for defendant and appellant.

Before the Entire Bench.

SMITH, Justice.

This case was filed in 1950, and issue was joined that year. Through 1957 the case was removed from the no-progress calendar 4 times. After the fourth reinstatement, a pretrial conference was held November 5, 1958. On the judge's pretrial worksheet, the following notation was made: 'Immediate trial--this month. Must be tried this year.' On the circuit court work schedule sheet, a similar notation was made at the instance of the pretrial judge. The matter was not tried that year, 1958. In April 1959, a deposition was taken and filed. For want of progress during the next 1-year period, the case was again placed on the no-progress calendar, and on application of plaintiff was again reinstated. The matter was tried to the court in August, 1960, and resulted in judgment for plaintiff.

The sole question presented on appeal by defendant is as follows: 'Was jurisdiction of the court lost for failure to try this case after eight years, within the additional time specified by the court?'

Defendant relies upon that portion of the judicature act having to do with the dismissal of cases for no-progress, C.L.1948, §§ 618.2-618.3 (Stat.Ann. §§ 27.982-27.983):

'Sec. 2. All causes in which no action has been taken or progress made for more than 1 year unless by reason of the business of the court the same shall not have been reached, shall be placed upon said calendar separate and apart from all other causes, under the following heading: 'Causes in which no progress has been made for more than 1 year;' and on the first day of each term, any cause appearing under this heading shall be dismissed by the court for want of prosecution, but without prejudice, at the cost of the party by whom it was brought into court, unless cause be then and there shown to the contrary.

'Sec. 3. If further time for the trial of such issue be allowed by the court, and the plaintiff shall neglect to try the same within the time so allowed, the court shall dismiss the action as above provided.'

Pointedly, we take note of the fact defendant claims not that the court was without jurisdiction over the persons and subject matter originally. Defendant's contention is that the trial court lost jurisdiction over the subject matter because the case was not tried during 1958, as noted on the worksheets aforementioned. Assuming, without deciding, that the judge's notes on said worksheets constituted an order setting date for trial, it does not follow that the directory provision of the statute is self-executing. We hold that the failure of the court to dismiss the case as provided in the statute did not oust the court of jurisdiction. This opinion is not to be construed in any way as sanctioning the...