Westlawn Cemetery Ass'n v. Codd

• Decision Date: 01 April 1927
• Docket Number: Motion No. 189.
• Parties: WESTLAWN CEMETERY ASS'N et al. v. CODD, Circuit Judge.
• Court: Michigan Supreme Court

238 Mich. 119

213 N.W. 143

WESTLAWN CEMETERY ASS'N et al.

v.CODD, Circuit Judge.

Motion No. 189. ^*

Supreme Court of Michigan.

April 1, 1927.

Petition for writ of mandamus by the Westlawn Cemetery Association and others against George P. Codd, Wayne Circuit Judge, complaining of an order setting aside default. Writ granted.

When we use the words ‘plaintiffs' and ‘defendants' we shall refer to the parties to the original suit out of which this mandamus proceeding arises. On March 1, 1924, plaintiffs filed their bill in the Wayne circuit court in chancery, and summons was duly issued. It was returned with the following certificate of service:

‘I hereby certify and return that on the 8th day of March, 1924, at Detroit, I served the within summons on R. Johnston Palmer and Emma S. Palmer by serving R. Johnston Palmer. I further certify on March 7, 1924, I served Fred N. Henry. I further certify on March 6, 1924, I served Sophia M. Henry. I further certify on March 7, 1924, I served Joseph J. Henry, together with a bill of complaint on each said defendant, the defendants named in said summons, by then and there, at the place and on the date above mentioned delivering to said above named defendant each a true copy of said summons inscribed ‘copy’ and subscribed William J. Griffin, plaintiff's attorney, and by showing at the same time to the said above-named defendant each the said summons with the seal of the court impressed thereon, on which copy so served was a true copy of the underwriting on the said summons.

‘George A. Walters, Sheriff,

‘John C. Wilcox, Deputy Sheriff.’

On April 2, following, praecipe was filed, and an alias summons was issued which was returned with the following certificate of service:

‘State of Michigan, County of Wayne-ss.:

‘I hereby certify and return, that on the 2d day of April, A. D. 1924, at Detroit, I served the within summons on Emma S. Palmer, the defendant named in said summons, by then and there, at the place and on the date above mentioned, delivering to said above-named defendant a true copy of the said summons, inscribed ‘copy’ and subscribed William J. Griffin, plaintiff's attorney, and by showing at the same time to the said above-named defendant the said summons with the seal of the court impressed thereon, on which copy so served was a true copy of the underwriting on the said summons.

‘Dated April 3, A. D. 1924.

‘George A. Walters, Sheriff,

‘D. G. Jayne, Deputy.’

On April 30, affidavit for default and one of regularity were filed, and an order pro confesso was filed reciting that it was on motion of plaintiffs' attorney; it was signed by the deputy clerk. On July 25, petition for issuance of commission to take depositions was filed, and the order was entered. The depositions were filed September 3, and on October 6 decree for plaintiffs was signed and filed. On October 28, the decree was enrolled. Over a year thereafter and on November 24, 1925, defendants by their present counsel filed a motion to set aside the default and decree accompanied by a sworn answer. The motion urged several defects in the proceedings, and set up in excuse of the delay that the papers served on them were turned over to their counsel then employed, who neglected to enter their appearance. The decree and default were set aside by order made by the trial judge, and the case is before us on an order to show cause and the return thereto.

Before the Entire Bench, except BIRD, J.

William J. Griffin, of Detroit, for petitioners.

Anderson, Wilcox, Lacy & Lawson, of Detroit (C. J. Huddleston, of Detroit, of counsel), for respondent.

FELLOWS, J. (after stating the facts as above)

We do not agree with plaintiffs' counsel that the circuit judge abused his discretion, if he had the discretion to set aside the default, and we shall confine ourselves solely to the question of power to make the order. Section 4, Circuit Court Rule 32, so far as important here, provides:

‘In all cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within six months after such default is regularly filed.’

The default must be regularly entered (Turner v. Ottawa Circuit Judge, 123 Mich. 617, 82 N. W. 247;McWilliams v. Lenawee Circuit Judge, 142 Mich. 226, 105 N. W. 611) and proceedings taken on the strength thereof must be regular proceedings (W. H. Warner Coal Co. v. Nelson, 204 Mich. 317, 169 N. W. 852), in which case the only proceedings taken on the strength of the default was the entry of an invalid judgment. But in Kentucky Wagon Mfg. Co. v. Kalamazoo Circuit Judge, 208 Mich. 267, 175 N. W. 150, we held that a literal following of the rules was not required, and that a substantial compliance was sufficient. Having in mind the rules laid down in these cases, we will take up the grounds of defendant's motion in their order.

1. We think the return of the officer to the original writ showed proper service except as to Emma S. Palmer. The court takes judicial notice that Detroit is in Wayne county; the return shows on what date each defendant was served and how he or she was served, and the return shows a service on each defendant except Mrs. Palmer in substantial compliance with section 2, Circuit Court Rule 19, and section 12441, C. L. 1915. The objections to the return are supercritical.

2. It is next urged that the alias writ was not issued in accordance with Circuit Court Rule 18. But it should be noted that rule 18 deals with writs on the law side and rule 19 deals with chancery summons, section 1 of which rule provides, in part:

‘* * * And if process is not executed on or before the return day, further process may be taken out of course, as often as may be necessary.’

But if the writ was not good as an alias, it was good as an original summons; the statute of limitations not having run. Frantz v. Detroit United Railway, 147 Mich. 199, 110 N. W. 531;Axtell v. Gibbs, 52 Mich. 639, 18 N. W. 395;Gunn v. Gunn, 205 Mich. 198, 171 N. W. 371.

3. The third ground of the motion is not seriously urged. The affidavit for...