Shank v. Castle

• Decision Date: 12 October 1959
• Docket Number: No. 12,12
• Citation: 98 N.W.2d 579,357 Mich. 290
• Parties: Phyllis SHANK, Plaintiff and Appellant, v. John H. CASTLE and Phyllis L. Castle, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 579

98 N.W.2d 579

357 Mich. 290

Phyllis SHANK, Plaintiff and Appellant, v. John H. CASTLE and Phyllis L. Castle, Defendants and Appellees.

No. 12.

Supreme Court of Michigan.

Oct. 12, 1959.

J. Lynn Fewlass, Detroit, for plaintiff and appellant.

Bailey & Robbins, Detroit, for appellees.

Before the Entire Bench.

DETHMERS, Chief Justice.

Plaintiff's declaration alleges, in substance, the following: that plaintiff is the daughter of defendants; that by decree awarded custody of her son; that from the time of his birth until her remarriage four years later she and her son lived with defendants; that at the time of her remarriage the parties agreed that the son was to live with defendants during the week and spend weekends with plaintiff until she could establish a home; that about a year and a half later the parties hereto agreed that the son should live with plaintiff, except for intermittent visits with defendant; that in breach and violation of the latter agreement defendants took and kept the son for a period of 20 days and brought a chancery action seeking his custody on the grounds that plaintiff had abandoned him and was not a proper person to have his custody; that in that chancery action a consent decree entered providing, in substance the same as the last previous agreement of the parties, that plaintiff was to have custody of the son but the defendants, during the next two years, were to have him weekends; that defendants' said breach of the last mentioned agreement, prior to the entry of said decree, by keeping the child for the 20-day period and bringing said chancery action, caused plaintiff mental anguish, pain, suffering, illness, medical expenses and expenses in defending said chancery action, for which she seeks damages as for breach of said agreement.

The trial court granted defendants' motion to dismiss on the ground that the chancery action rendered the issues herein res adjudicata. Plaintiff appeals.

Plaintiff says that a copy of her declaration was received by defendants' attorneys by mail, not later than March 1, 1958, although they had not then entered an appearance. On March 4th they entered a special appearance and filed a motion to quash the service of process because made on Washington's birthday. No other grounds for dismissal were asserted. On March 10th the court denied the motion and extended for 15 days thereafter the time within which defendants might plead. On March 24th defendants filed the motion to dismiss on the ground, inter alia, of res adjudicata, attaching the bill of complaint, answer, cross bill and decree in the mantioned chancery action between these parties. This is the motion which, as above stated, the court granted, prompting this appeal.

Michigan Court Rule No. 27, § 6, reads:

'A motion attacking a plading or any part thereof must be filed and served within 15 days after the receipt of the pleading attacked. Such motion shall include all objections to the pleading attacked and to the proceedings up to that date in the case. And all objections to pleadings or proceedings not stated in the motion shall be deemed waived.'

Plaintiff contends that under the above quoted rule defendants waived their rights to object to the declaration and to urge res adjudicata because they failed to do so within 15 days after receipt of a copy of the declaration and because they failed to include such objections and claim in their motion to quash. Rule No. 18, § 4, provides for filing, within the time for appearing, of a motion to quash the service of process and that every denial thereof 'shall be without prejudice, whereupon the defendant shall have the right to appear generally and plead.' This contemplates that after denial of the motion to quash defendant shall have time within which to appear generally and plead. This is precisely what the order of the court below provided, as also authorized under Rule No. 27, § 8. Section 3 of that rule provides that in case a special motion is made the 15-day period for answering commences with final determination of such motion. In Reaume & Silloway, Inc. v. Tetzlaff, 315 Mich. 95, 23 N.W.2d 219, 222 this Court, in affirming the trial court's order denying a motion to quash service of process, provided in its opinion, 'Defendants shall have 15 days after this opinion is filed within which to plead to or answer plaintiff's declaration.' From all this it is clear that there is no foundation to plaintiff's claim that defendants' motion to dismiss came too late.

As for plaintiff's contention that defendants waived their right to make the second motion on the grounds therein urged by failing to include the same in their first motion, it is to be observed that Rule No. 27, § 6, relied on by plaintiff in that connection, requires that 'A motion attacking a pleading * * * shall include all objections to the pleading attacked', failure to do so working a waiver of those not included. Defendant's first motion was not an attack on a pleading, but, after special appearance, an attack on the service of process. The rule does not require any possible attack on the pleadings to be included in such motion to quash and, hence, the waiver provision of section 6 has no application here.

Rule...