Smak v. Gwozdik

• Decision Date: 02 April 1940
• Docket Number: No. 144.,144.
• Citation: 293 Mich. 185,291 N.W. 270
• Parties: SMAK v. GWOZDIK et al.
• Court: Michigan Supreme Court

293 Mich. 185

291 N.W. 270

SMAK

v.GWOZDIK et al.

No. 144.

Supreme Court of Michigan.

April 2, 1940.

Suit by Wojciech Smak against Wasyl Gwozdik and another for malicious prosecution. From an order vacating a default judgment, the plaintiff appeals in the nature of mandamus.

Affirmed.

WIEST and POTTER, JJ., dissenting.

Appeal from Circuit Court, Wayne County; Lester S. Moll, judge.

Argued before the Entire Bench.

Robert D. Anspach, of Detroit (A. L. Fineberg, of Detroit, of counsel), for appellant.

Ernest Nichols Papps, of Detroit, for appellees.

CHANDLER, Justice.

This is an application for review, in the nature of mandamus, of an order entered by Judge Moll in the circuit court for the County of Wayne, vacating a default judgment entered on November 25, 1933.

The facts are brief and no dispute exists in regard thereto. A suit was started by summons against defendants on February 2, 1933. An alias summons was served on June 13, 1933, and proof of service filed June 17, 1933. On November 20, 1933, an order of default for failure of defendants to appear was filed. On the following day, plaintiff filed his declaration, and on November 25, 1933, a default judgment was entered against defendants. The declaration sought damages for alleged malicious prosecution of plaintiff by defendants in February, 1930.

On June 28, 1939, defendants moved to set aside the default theretofore entered, and to vacate the judgment rendered pursuant thereto, and later, after a hearing on the motion, an order was entered by the trial judge vacating the judgment entered as aforesaid, and requiring defendants to file answer to plaintiffs' declaration within 15 days.

It is conceded by counsel for the respective parties that the question involved is whether or not a default judgment is invalid by reason of the fact that plaintiff did not file hid declaration until after taking the default of the defendants for failure to appear, if, at the time of taking judgment, all necessary pleadings were on file. The trial court held that such judgment was invalid.

The plaintiff contends that the default of the defendants consisted in failure to appear pursuant to summons; that the legality of such default did not depend upon the previous filing of the declaration; and, that the subsequent entry of judgment is based upon the allegations of the declaration filed prior to such judgment and that the judgment rendered is valid.

The defendants contend that plaintiff was not in a position to enter their default for failure to appear when he was in default for failure to file declaration, and that the declaration should have been filed within 15 days after the issuance of the writ of summons, or at least before the entry of the default. The statute, 3 Comp.Laws 1929, § 14067 (Stat.Ann. § 27.734) provides that if an action shall be commenced by original writ, plaintiff shall file his declaration in the office of the clerk within 15 days after the issuance of said writ. However, this court has upon numerous occasions held that the requirement for the filing of the declaration within said period is not mandatory and that, while the plaintiff might be subject to default for failure to file within such period, such default can be cured by a subsequent filing.

In the determination of the issue involved, the trial court held that the controlling question was whether plaintiffs' declaration should have been filed before the entry of the default, and that that question had been answered and the case controlled by Goodspeed v. Smith, 161 Mich. 688, 126 N.W. 975, and Sczesny v. Wayne Circuit Judge, 245 Mich. 438, 222 N.W. 759.

Neither the industry of counsel nor our own research has resulted in finding any case which deals with the precise question we are called upon to decide.

There can be no question but that the entry of a default means an admission only of matters well pleaded. St. Matthews Bank & Trust Co. v. Fairleigh, 259 Ky. 209, 82 S.W.2d 326;Simon v. Duet, 177 La. 337, 148 So. 250.

The plaintiff contends that inasmuch as defendants submitted to a judgment by default they should not be permitted to escape the legal consequences of their own neglect by a review of the judgment entered; and that at the most, the entry of default before the filing of his declaration was a mere irregularity which was cured by the judgment entry. If the failure to file a declaration before entry of default is a mere irregularity, it will not invalidate the judgment. See 3 Comp.Laws 1929, § 14148 (Stat.Ann. § 27.842). However, a declaration which does not allege a cause of action is not sufficient to support a default judgment for plaintiff. There can be no question about the correctness of this proposition.

There must be strict compliance with the statutory provisions relative to the entry of default judgments and decrees.

Default of a defendant in an equity case is by the entry of an order pro confesso, meaning that the allegations of plaintiff's bill of complaint have been taken as confessed. No one would contend that the entry of an order pro confesso without a bill of complaint being on file at the time would furnish a basis for the entry of a valid decree. The entry of a defendant's default in a law case results in legal effect in an admission of the allegations contained in the declaration. In the absence of a declaration being on file at the time of entry of such an order, the defendant admits nothing by his failure to appear and plead. Entertaining these views and applying them to the question under consideration, we find that here the entry of defendant's default was premature, because no declaration was on file, and that this irregularity could only be cured by the entry of defendants' default subsequent to the filing of the declaration.

The views expressed by us that the default judgment is invalid, we think, finds support in Sczesny v. Wayne Circuit Judge, supra, wherein we said: ‘It has been held repeatedly that the purpose of this rule is to fix a limit to the time within which a default judgment regularly entered after personal service and subsequent proceedings had thereon may be vacated, and that unless there is some irregularity in entering such default it cannot be set aside after the lapse of time specified by rule. Hakes v. Kent Circuit Judge, 213 Mich. 278, 182 N.W. 77, and cases cited. The return filed herein shows that the circuit judge set aside the default judgment on the ground that it was not regularly entered, because the declaration was not filed within 15 days after the issuance of the summons, as provided by section 12407, [3] C.L.1915. This provision of the statute is not mandatory. Goodspeed v. Smith, 161 Mich. 688, 126 N.W. 975. The declaration was filed before the default, and therefore the default as filed was free from the claimed irregularity.’

It fairly appears to us from the language contained in the last sentence of the above quotation that if the declaration there had not been filed before the default, that the court would have held that said default as entered was irregular, and not sufficient to form the basis of a valid judgment.

We also quote from Goodspeed v. Smith, supra: ‘We are of the opinion that the statute was not designed to make the filing of a declaration within 15 days after the writ mandatory. * * * that noncompliance is an irregularity. Unless we must say that the seasonable filing of a declaration is essential to the acquirement of jurisdiction over the person of the defendant, there is no reason for not treating the failure as an irregularity. Jurisdiction is acquired by proper publication and proof thereof following the statutory preliminary steps. the pleadings, default, and judgment follow, and there is no doubt that, if the record shows a judgment without a lawful default after filing a declaration, the judgment is void on the face of the record.’ [161 Mich. 688,126 N.W. 976.]

We believe from the foregoing cases it is made clear that in order to have a valid default judgment a lawful default must be entered after the filing of a declaration.

The order of the trial court is affirmed, with costs to defendants.

BUSHNELL, C. J., and SHARPE, NORTH, McALLISTER, and BUTZEL, concurred with CHANDLER, J.

NORTH, Justice.

This is an appeal from an order of the circuit judge granting defendants' motion to set aside a default judgment. There was personal service on defendants of an alias summons June 13, 1933. No further proceedings were had in this suit until...