Moffatt v. Mofatt, 51.

• Decision Date: 04 October 1948
• Docket Number: No. 51.,51.
• Citation: 322 Mich. 555,34 N.W.2d 70
• Parties: MOFFATT v. MOFATT.
• Court: Michigan Supreme Court

322 Mich. 555

34 N.W.2d 70

MOFFATT

v.MOFATT.

No. 51.

Supreme Court of Michigan.

Oct. 4, 1948.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County, in Chancery; Theodore J. Richter, Circuit Judge.

Suit for divorce by Iris Moffatt against Oakley C. Moffatt, wherein the plaintiff was granted a divorce decree. Thereafter the defendant moved to modify the decree to extent that plaintiff be required to turn over to defendant certain personalty. From an order dismissing the motion, the defendant appeals.

Order affirmed.

Before the Entire Bench.

Buell A. Doelle, of Detroit, for plaintiff and appellee.

Norman H. Magel, of Detroit, for defendant and appellant.

BUSHNELL, Chief Justice.

Plaintiff Iris Moffatt was granted a divorce from defendant Oakley C. Moffatt on December 26, 1946. The property settlement provision of the decree is as follows:

‘It is further ordered, adjudged and decreed that the said Oakley C. Moffatt pay to the said Iris Moffatt the sum of One ($1.00) Dollars, and that this provision made for the said plaintiff herein shall be in lieu of her dower in the lands of her husband, the said defendant, and that he shall hereafter hold his remaining lands free, clear and discharged from any such dower right or claim and said provision shall also be in full satisfaction of all claims that she may have in any property which the said defendant owns or may hereafter own, or in which he has or may hereafter have any interest.’

No other mention is made in the divorce decree of a settlement of the property rights of the parties. On September 9, 1947, a motion, entitled, ‘Motion to Modify Decree Re Property,’ was filed by Moffatt, stating that certation personal property belonging to him remained in plaintiff's possession, that defendant has not had his day in court, and that he has been denied certain valuable property rights. He requested that the decree be modified to the extent that the plaintiff be required to turn over to him such of this property as shall be deemed equitable and proper.

Plaintiff moved to dismiss Moffatt's motion and at the same time filed an answer to it. The friend of the court recommended that Moffatt's motion be denied, and on January 19, 1948, an order was entereddenying the motion. The appeal is from this order.

It is claimed by Moffatt that notwithstanding the provisions of Rule No. 48, § 1, of the Michigan Court Rules, which reads:

‘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,’ and the various authorities cited by plaintiff and relied upon by the court below, that the requested relief should have been granted. This claim is based upon the fact that service was had upon the defendant by publication and not personally.

There is little merit...