Wendel v. Swanberg
| Decision Date | 23 April 1969 |
| Docket Number | No. 3,Docket Nos. 5263,6156,3 |
| Parties | Richard O. WENDEL and Elizabeth M. Wendel, Plaintiffs-Appellees, v. Helen SWANBERG, Defendant-Appellant, and Travelers Indemnity Co., Garnishee Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
John E. Hart, Manistee, for Swanberg.
Korn & Burns, Cadillac, for Travelers.
Donald G. Jennings, Manistee, for appellees.
Before QUINN, P.J., and HOLBROOK and T. M. BURNS, JJ.
May 8, 1967, plaintiffs recovered $25,000 from defendant by default judgment. Her motion to set aside the default judgment was denied February 26, 1968 and defendant appealed March 13, 1968. March 21, 1968, plaintiffs recovered a judgment for $25,000 against garnishee defendant, the insurer of defendant's premises. Garnishee defendant moved to vacate the judgment against it and for a new trial. From denial of this motion, garnishee defendant appeals, and the appeals were consolidated in this Court.
Elizabeth M. Wendel and defendant had known each other for over 20 years and were close friends. February 15, 1966, Elizabeth visited defendant's home. About 7:30 P.M., Elizabeth departed and she fell before she reached her automobile. A fractured hip resulted from the fall and Elizabeth was hospitalized. Some time after the fall, defendant telephoned her insurance agent to inquire whether her insurance covered anyone who fell on her premises, and she was advised that it did. When Elizabeth was released from the hospital, she convalesced about 2 months at defendant's home.
During the latter period, defendant reported the fall of Elizabeth of her insurance agent, and an investigator interviewed defendant and Elizabeth at defendant's home. Garnishee defendant denied liability except for medical expense of $500, which was offered to and declined by plaintiffs. Defendant indicated to Elizabeth that defendant's insurance coverage was larger, and Elizabeth stated she was going to sue the insurance company. Plaintiffs' attorney requested to see defendant's insurance policy and he was permitted to do so. The policy had a $25,000 limit of personal liability for bodily injury.
About Christmastime of 1966, Elizabeth suffered another fall in her home. This time she broke the same leg but not at the hip. She was again hospitalized and she again spent some of her convalescence in defendant's home.
Plaintiffs filed this action against defendant February 3, 1967 for damages in the amount of $25,000. Defendant was personally served February 7, 1967 and her default for failure to plead or otherwise defend was entered April 20, 1967. The default judgment of May 8, 1967 awarded Elizabeth M. Wendel $15,000 damages and Richard O. Wendel $10,000.
After defendant received the summons and complaint, she did not consult an attorney. She stated she assumed her insurance company would look after it. Defendant mailed the summons and complaint to her insurance agency some time before June 1967, according to her, but the papers were not received by the agency until November 1967, according to the agent. The suit papers did not reach the garnishee defendant until December 1, 1967. Defendants' first knowledge of the judgment against her arose when her bank account was garnisheed late in November 1967. February 16, 1968, defendant filed her motion to vacate the default judgment. February 19, 1968, plaintiffs filed a motion for summary judgment against the garnishee defendant. Both motions were heard February 26, 1968.
Pursuant to GCR 1963, 528.3, defendant sought relief from the default judgment by her motion of February 16, 1968. The rule provides that relief may be granted for any of 5 specific reasons and for (6) 'any other reason justifying relief from the operation of the judgment'. Motion for relief shall be made within a reasonable time. The grant or denial of relief is discretionary.
Two questions are presented under the rule, namely: Was relief sought within a reasonable time and was denial of relief an abuse of discretion?
The record before us is strongly suggestive of the fact that defendant was desirous of assisting her friend, the injured Elizabeth M. Wendel, and that this desire continued to the point at which defendant realized she might become financially involved in that assistance. Within 3...
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...to permit the default judgment to stand and the default was set aside under GCR 1963, 528.3(6). Again in Wendel v. Swanberg (1969), 17 Mich.App. 235, 169 N.W.2d 364, this Court set aside a default judgment under the same rule on the basis of a record which established good cause for setting......