Rosen v. Brennan
| Decision Date | 01 October 1928 |
| Docket Number | Motion No. 361. |
| Citation | 244 Mich. 397,221 N.W. 276 |
| Parties | ROSEN v. BRENNAN, Wayne Circuit Judge. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Original application for mandamus by Robert L. Rosen against Vincent M. Brennan, Wayne Circuit Judge. Writ denied.
Argued before the Entire Bench. Prentis Pugh, Fitch & Carpenter, of Detroit, for plaintiff.
Butzel, Levin & Winston, of Detroit, for respondent.
This is an application for a writ of mandamus to compel the respondent to vacate an order entered by him in the circuit court of Wayne county whereby a default judgment taken by the plaintiff against Harold B. Dewstow was set aside and the case opened for hearing on the merits. Differences between Rosen and Dewstow resulted in two suits at law being started in the circuit court of Wayne county. The first was instituted by Rosen against Dewstow; in the second Dewstow was plaintiff and Rosen defendant. Both suits related to the same transaction. The suit wherein Rosen was plaintiff was started by summons October 25, 1923, and service was obtained on Dewstow two days later. The suit by Dewstow against Rosen was commenced by summons October 30, 1923. Early in November following, and before an appearance was entered in either suit, the parties had a conference relative to settling their differences. It is claimed by Dewstow that the matters in controversy between these parties were adjusted by an agreement that both suits should be discontinued. This, the return shows, was found to be a fact by the respondent incident to hearing the motion to set aside the default; and it was further found that:
‘Defendant Dewstow was lulled into a sense of security and unwariness by petitioner's representations and promises as to the withdrawal of said cause, and for that reason paid no further attention to the status of said cause.'
On april 22, 1924, Rosen filed the declaration in his suit against Dewstow; and thereafter (June 7, 1924) he entered Dewstow's default for failure to plead. Judgment for $2,982.90 and costs of $21.60 was taken July 27, 1927. Dewstow's motion to vacate the judgment and set aside the default was made December 16, 1927, and granted April 9, 1928.
The plaintiff herein asserts that the circuit judge should be required to vacate the order made because: (1) Dewstow's motion to set aside his default was not made within six months after the same was regularly entered, as required by circuit court rule No. 32; (2) under the record the circuit judge's order vacating the judgment was an abuse of discretion.
In part, circuit court rule No. 32 reads:
‘In all cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall have been made within six months after such default is regularly entered.'
In McWilliams v. Lenawee Circuit Judge, 142 Mich. 226, 105 N. W. 611, attention is called to the fact that the wording of this rule was changed in 1903 by inserting the words ‘default is regularly entered’ after the word ‘such’; and it is stated, in substance, that this change was obviously made to prevent the doing of an injustice in those cases wherein the default was not regularly entered. It has been held repeatedly that courts are bound by this rule; and, if following personal service a default is regularly entered, and proceedings taken after default on the strength thereof, the courts are without power to vacate such default after the expiration of the six months provided in the rule. Newman v. Wayne Circuit Judge, 215 Mich. 185, 183 N. W. 745. On the other hand, if the default is irregularly entered, the trial judge in exercise of his discretion may vacate the same after the expiration of the period specified. Turner v. Ottawa Circuit Judge, 123 Mich. 617, 82 N. W. 247;McWilliams v. Lenawee Circuit Judge, supra. And it has been held that this provision of the rule does not apply at all where the default of a plaintiff is taken by a defendant. Detroit Taxicab & Transfer Co. v. Wayne Circuit Judge, 203 Mich. 105, 168 N. W. 934.
The respondent was without power to enter...
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