Rose v. Rose, Docket No. 2237

• Decision Date: 26 March 1968
• Docket Number: Docket No. 2237,No. 2,2
• Citation: 157 N.W.2d 16,10 Mich.App. 233
• Parties: Doris Wertheimer ROSE, Plaintiff-Appellant, v. Jack ROSE, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 16

157 N.W.2d 16

10 Mich.App. 233

Doris Wertheimer ROSE, Plaintiff-Appellant, v. Jack ROSE, Defendant-Appellee.

Docket No. 2237.

Court of Appeals of Michigan, Division No. 2.

March 26, 1968.

Joseph W. Louisell, Louisell & Barris, Detroit, for appellant.

Piggins, Balmer, Grigsby, Skillman & Erickson, Detroit, for appellee.

Before FITZGERALD, P.J., and T. G. KAVANAGH, and GILLIS, JJ.

T. G. KAVANAGH, Judge.

On April 13, 1964, plaintiff filed in the Oakland county circuit court a complaint for separate maintenance pursuant to C.L.1948, § 552.301 (Stat.Ann.1957 Rev. § 25.211). On December 1, 1965, the date scheduled for trial, plaintiff orally moved to amend the complaint to state an action for absolute divorce, see C.L.1948, § 552.6 (Stat.Ann.1957 Rev. § 25.86) and C.L.1948, § 552.8 (Stat.Ann.1957 Rev. § 25.88), and the court denied the motion for the reason that it was not timely made. Thereupon plaintiff indicated that she was not prepared to proceed further with the separate maintenance action. Defendant thereupon moved to dismiss under GCR 1963, 504.2 ¹ and the motion was granted. Upon entry of the order dismissing the separate maintenance action, plaintiff filed a complaint for absolute divorce, alleging acts of extreme and repeated cruelty which were substantially the same acts alleged in support of the complaint for separate maintenance.

The defendant then moved to dismiss the complaint for divorce on the ground that the dismissal of the separate maintenance action constituted an adjudication on the merits of the issue of extreme cruelty and that plaintiff was therefore barred as a matter of law from presenting evidence of extreme cruelty. The court granted the motion and from this dismissal of her complaint for divorce plaintiff has appealed.

Plaintiff's election not to proceed with the separte maintenance action was tantamount to a failure to prosecute under the terms of GCR 1963, 501.3, and consequently the motion to dismiss was properly within the scope of rule 504.2.

'An involuntary dismissal, under sub-rule 504.2 operates as an adjudication upon the merits, unless the court in its order for dismissal otherwise specifies. Thus, contrary to the common law rule, a dismissal for failure to prosecute will bar a subsequent attempt to prosecute the Same claim, unless the order of dismissal expressly states that the dismissal is without prejudice.' 2 Honigman and Hawkins, Michigan Court Rules Annotated, page 334. (Emphasis added.)

Since the court did not otherwise specify, this dismissal will be treated as operating as an adjudication upon the merits. Thus, it would appear that the effect of rule 504.2 is to establish the defense of bar with respect to the claim involved.

The reason for the rule is that if a plaintiff does not care enough to prosecute his action diligently, fairness requires that defendant be allowed to protect himself from the bother of filing answers to a multiplicity of complaints for the same claim, by relying upon the dismissal as ending the matter for all time. This affords plaintiff reasonable and ample opportunity to bring his action and sustain his claim, while demanding diligence on his part for the protection of the defendant.

In assaying the correctness of the trial court's ruling in the instant case we must answer the question of whether the claim in this case is the same claim which was determined by the...