Watkins v. Hunt

• Decision Date: 03 June 1929
• Docket Number: Motion No. 112.
• Parties: WATKINS et al. v. HUNT, Wayne Circuit Judge.
• Court: Michigan Supreme Court

247 Mich. 237

225 N.W. 554

WATKINS et al.

v.HUNT, Wayne Circuit Judge.

Motion No. 112.

Supreme Court of Michigan.

June 3, 1929.

Petition by Hubert Watkins and others, copartners doing business as the Watkins & Booth Real Auto Service, for a writ of mandamus requiring Ormund F. Hunt, Wayne Circuit Judge, to set aside an order vacating a default judgment. Writ granted.

Argued before the Entire Bench.

Louis B. Ver Wiebe, of Detroit, for petitioners.

Ira J. Pettiford, of Detroit, for respondent.

FELLOWS, J.

On April 10, 1926, the present plaintiff brought suit by summons in the Wayne circuit against Detroit Speedway Association, a Michigan corporation, and John H. Atkins. The officer's return is as follows:

‘State of Michigan, County of Wayne-ss.

‘I hereby certify and return that, on this 17th day of April, A. D. 1926, at Detroit in said county of Wayne, I served the within summons upon John H. Atkins for the Detroit Speedway Association, and John H. Atkins, personally, the defendants named in said summons, by then and there showing the said above named defendants the within summons, with the seal of the court impressed thereon, and delivering to him, said defendant, a true copy of said summons.

‘Geo. A. Walters,

‘Sheriff of Said County.

‘Eugene W. Sage,

‘Deputy Sheriff.’

May 7th defendant's default was entered, and on May 28th judgment for plaintiffs for $1,041.60 was entered. Execution was issued and returned unsatisfied January 20, 1927. Writ of capias was issued, and on February 23d following defendant John H. Atkins was released. The following year motion to set aside the default and judgment was filed, and on November 3, 1928, this motion was granted. This mandamus proceeding tests the validity of the last-named order.

Plaintiffs insist that, in a suit in chancery, upon a bill filed by John H. Atkins, the validity of the judgment and proceedings leading up to it were sustained, and that such suit is res adjudicata. The defendant circuit judge returns that he did not hear the case and is unfamiliar with it or the issues involved in it. A decree dismissing a bill filed by Mr. Atkins against the present plaintiffs appears in the record, but the bill does not appear in the record, and we are therefore left to conjecture as to its contents and purpose. Upon the record as made, we may not decide the question of res adjudicata. Defendant's brief claims that present plaintiffs have not filed their certificate of partnership with the county clerk; hence may not maintain this action. As there is nothing in the record to either confirm or disaffirm this claim, we will likewise pass this question by. Confining ourselves, as we should, to those questions which are raised by counsel and are presented by the record, we are limited to these questions: (1) Was there proper service of the summons? (2) Did the declaration state a cause of action, and, if not, could the question be here raised?

Where there is personal service, the motion to set aside the default must be made within six months. Circuit Court Rule 32, § 4; Westlawn Cemetery Association v. Wayne Circuit Judge, 238 Mich. 119, 213 N. W. 143;Hakes v. Kent Circuit Judge, 213 Mich. 278, 182 N. W. 77, and authorities there cited at page 285 (182 N. W. 80). The default must be regularly filed or entered. The rule so...