Seifert v. Keating, 51

• Decision Date: 28 December 1955
• Docket Number: No. 51,51
• Citation: 73 N.W.2d 894,344 Mich. 456
• Parties: Alice Keating SEIFERT, Plaintiff-Appellee, v. Daniel L. KEATING, also known as D. Lester Keating, also known as D. Keating, individually and as Administrator of the Estate of Anna M. Keating, Deceased, and as Administrator of the Estate of Eugene M. Keating, Deceased, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 894

73 N.W.2d 894

344 Mich. 456

Alice Keating SEIFERT, Plaintiff-Appellee, v. Daniel L. KEATING, also known as D. Lester Keating, also known as D. Keating, individually and as Administrator of the Estate of Anna M. Keating, Deceased, and as Administrator of the Estate of Eugene M. Keating, Deceased Defendant-Appellant.

No. 51.

Supreme Court of Michigan.

Dec. 28, 1955.

Samuel H. Rubin, Detroit, Morton C. Goldberg, Phyllis Rubin, Detroit, of counsel, for defendant-appellant.

Wm. Henry Gallagher, Detroit, for plaintiff-appellee.

Before the Entire Bench.

SMITH, Justice.

We are here concerned with a default decree. The appellant wishes it vacated. The trial court's order denied appellant's motion to set aside the default and the decree based thereon.

The parties involved are brother and sister. They are the only surviving children of their deceased parents. The defendant is, or has been for upwards of 26 years, a member of a religious order. During the lifetime of the parents, all parties apparently enjoyed a closely-knit family relationship. After the death of the parents in the fall of 1953, the children's difficulties began. The trouble concerned the property and money of the old people. The brother, defendant herein, assumed its custody and control, and upon petition to the probate court was appointed administrator of his parents' respective estates. In his petitions for administration he listed himself as the sole heir-at-law of his parents, who had left no last will and testament. Further comment as to the conduct of the defendant would serve no justifiable purpose.

On September 17, 1954, plaintiff filed a bill of complaint against defendant, individually, and as administrator of their parents' estates, alleging in substance that the defendant, by virtue of his professional position, while enjoying a position of special trust and confidence, exerted undue influence upon the parents and induced them 'to transfer to him substantially all of their property and assets upon the promise and representation of the defendant that he would give and pay to plaintiff more than one-half of the said parents' property and assets upon their deaths.' She prayed that the court by its decree impress a trust upon the real and personal property in favor of plaintiff, to the extent of a one-half interest, and that defendant be decreed to specifically perform his promise to share the property equally. In addition (having alleged that defendant had rented the 2-family flat in which her parents had lived) she asked for an accounting of the rents, and the property received by the defendant from the parents, and that defendant be restrained during the pendency of the suit from disposing of, or encumbering, the real property.

Personal service of summons and bill of complaint was assertedly made by one Angeline Kelly on the defendant on October 18, 1954. An order of default was filed November 5, 1954. The matter came on for hearing pro confesso on November 18, 1954, at which time the court heard testimony and took proofs in support of the allegations of plaintiff's bill of complaint, at the conclusion of which the court directed plaintiff's counsel to 'bring it (the decree) in when you get it prepared.' On the following day the decree was entered awarding plaintiff the sum of $11,857.14, plus rentals due her, to be determined by an accounting thereof, together with an undivided one-half interest in the real estate in question. It was further ordered that plaintiff have a lien upon the defendant's undivided one-half interest in the real estate as security for the payment of the sum aforesaid, and a sale of defendant's interest was ordered if, after 30 days, payment had not been made. The matter of the accounting was referred to the circuit court commissioner to determine the amount owed to plaintiff for rentals collected on the real estate. A proof of service of the decree was filed on December 15, 1954, which disclosed that personal service of the decree could not be made and that service by registered mail had twice been attempted, but in each case the envelope returned with the notation 'refused.'

On December 1, 1954, plaintiff garnished defendant's bank account at the Detroit Bank, defendant having been notified of the garnishment by the bank, came into court for the first time on January 5, 1955. He filed at once a motion to set aside the default, and the decree based thereon, and proffered a sworn answer to plaintiff's bill of complaint. The affidavit attached to the motion to vacate the default set up a lack of service of process and other matters which will be referred to as necessary. This motion was later amended to add:

'1. That the default was irregularly entered, in that no proof of service upon all of the defendants apears on record.

'2. Because the decree based upon said default was improperly entered, in that no military affidavit was filed to take a decree pro confesso, as required by Wayne Local Rule, Part 1, Rule 24, M.S.A. § 4.644, C.L.1948, § 32.53, 50 U.S.Code A. [Appendix, ss] 501-58.'

A hearing on defendant's motion was had on January 19, 1955, at which time testimony was heard and proofs taken. At the conclusion thereof the trial judge denied defendant's motion to set aside the default. Plaintiff moved on January 25, 1955, to reopen the hearing on defendant's motion to set aside the default and further testimony and proofs were taken on February 14, 1955, whereupon the court again denied defendant's motion. On February 18, 1955, the court entered a written order denying defendant's motion to set aside the default, and the decree based thereon. It also entered a written order that 'an order nunc pro tunc be entered as of November 18, 1954, directing the entry of a decree in this court and cause.' (This decree had been filed on November 19, 1954, the day following the hearing pro confesso, pursuant to the court's order from the bench to 'bring it in when you get it prepared.') In addition it provided that plaintiff might 'file the attached non-military affidavit nunc pro tunc as of November 18, 1954.' Defendant has taken a general appeal from both of these orders.

We turn to allegations of error. In the defendant's affidavit in support of his motion to set aside the default, and the decree based thereon, he counted heavily upon the allegation that he, in his own words,

'* * * was never served with any summons, bill of complaint or restraining order on October 18, 1954, nor was there exhibited to him on said day and at the same time the original of the said summons with the seal of the court impressed thereon, nor was he so served with said documents at any time.'

In his sworn answer, filed at the same time, he asserts that 'during the course of these proceedings' he was in New Oleans, Louisiana. An issue, then, was tendered, going to the jurisdiction of the court over the person of the defendant. Extensive testimony was taken thereon and it comprises much, if not most, of the record before us. We will not summarize. The record discloses variances so marked that they cannot reasonably be said to have resulted from inadvertence or confusion. The trial court reached a conclusion that proper service had been made. We see no ground for disturbing his...