Stevens v. Northway

• Decision Date: 01 April 1940
• Docket Number: No. 53.,53.
• Citation: 293 Mich. 31,291 N.W. 211
• Parties: STEVENS v. NORTHWAY et al. (METROPOLITAN CASUALTY INS. CO. OF NEW YORK, Garnishee).
• Court: Michigan Supreme Court

293 Mich. 31

291 N.W. 211

STEVENS

v.NORTHWAY et al. (METROPOLITAN CASUALTY INS. CO. OF NEW YORK, Garnishee).

No. 53.

Supreme Court of Michigan.

April 1, 1940.

Action by Frank Stevens against R. A. Northway, doing business under the assumed name of Northway Clinic & Hospital, and others, to recover damages for malpractice, wherein, after recovering judgment against defendants, plaintiff sued out a writ of garnishment against the Metropolitan Casualty Insurance Company of New York, a foreign corporation. From a default judgment against the garnishee, the garnishee appeals.

Affirmed. Appeal from Circuit Court, Isabella County; Ray Hart, Judge.

Argued before the Entire Bench.

Frederick J. Ward, of Detroit, and H. Monoroe Stanton, of Saginaw, for appellant.

Crane & Crane, of Saginaw (Henry E. Naegely, Jr., of Saginaw, of counsel), for principal defendants.

B. A. Wendrow of Mt. Pleasant, and Worcester & Worcester, of Big Rapids, for appellee.

WIEST, Justice.

Plaintiff had judgment in the Isabella circuit court against the principal defendants in an action for malpractice and, on March 8, 1939, sued out in that court a writ of garnishment against the Metropolitan Casualty Insurance Company of New York, requiring disclosure on or before March 31, 1939. The writ was reqularly served, as provided by law, upon the commissioner of insurance. March 28, 1939, the garnishee petitioned the circuit court for removal of the proceeding to the Federal district court by reason of diversity of citizenship, tendered bond and, upon denial of removal, the attorneys for the garnishee served notice of removal to the Federal court. After such notice, and on April 10th, disclosure by the garnishee denying indebtedness or liability was filed in the Federal court. The Federal court, on April 15, 1939, remanded the proceeding to the State court. In the meantime plaintiff entered the default of the garnishee in the State court for want of appearance and disclosure in that court and, upon remand by the Federal court, re-entered the default on April 17th and, the same day, upon proofs in court, took judgment against the garnishee. April 18, 1939, the garnishee, under special appearance, moved the circuit court to set aside the default as prematurely entered, averred filing of the disclosure in the Federal court denying liability and notice thereof to the attorneys for plaintiff, before entry of the default and filed an affidavit of merits. The motion was denied, and this appeal followed.

The garnishment proceeding was ancillary to the action against the principal defendants and wholly dependent thereon and not the commencement of an independent action. Wyngarden v. LaHuis, 251 Mich. 276, 231 N.W. 572.

The writ of garnishment was regular, proper service was made and disclosure was required on or before March 31, 1939, and none was filed in the circuit court, and not in the Federal court until April 10th.

Attorneys for the garnishee contend that, under Court Rule No. 27, § 3, time to file disclosure was extended 15 days from April 11th, when the petition for removal to the Federal court was denied and,...