White v. Sadler

• Decision Date: 24 December 1957
• Docket Number: No. 20,20
• Parties: Frank WHITE and Emma White, his wife, Plaintiffs and Appellees, v. Claude E. SADLER, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 192

87 N.W.2d 192

350 Mich. 511

Frank WHITE and Emma White, his wife, Plaintiffs and Appellees, v. Claude E. SADLER, Defendant and Appellant.

No. 20.

Supreme Court of Michigan.

Dec. 24, 1957.

Sherman McDonald, Royal Oak, for appellant.

Arthur H. Rice, Detroit, for appellees.

Before the Entire Bench.

VOELKER, Justice.

This case involves a consideration of some nice procedural questions. Defendant appeals from an order denying his motion to set aside a default and judgment entered against him following failure to plead after appearance of his attorney. The denied motion also sought a new trial. Suit on a promissory note was commenced by summons and declaration, with bill of particulars attached, copy of which was personally served on the defendant on March 25, 1955 and proof of service filed. Defendant's general appearance by his attorney was filed on April 7, 1955. No answer or other pleading was filed by him and plaintiffs' attorney ultimately served true copies of an affidavit and order of default on defendant's attorney. Proof of service thereof by mailing to defendant's attorney was duly filed. The original affidavit of default and order of default were filed on July 21, 1955. Default judgment was entered on August 22, 1955, but the record discloses no proof of service of notice of the entry thereof was ever filed by the plaintiffs, as then required by the court rule hereinafter referred to. Nor is there any showing that defendant received from plaintiffs any advance notice of the entry of such default judgment.

On January 26, 1956, the defendant's present attorney filed a general appearance and on the same date filed defendant's motion to set aside the judgment and for a new trial, alleging that he had a meritorious defense to the action (statute of limitations) and also a valid set-off and recoupment; that he had relied on his former attorney to file an answer setting up his defenses and that his attorney had failed to do so; that he had engaged a new attorney as soon as he learned of the default judgment (early the same month, January, when an execution was served on him); and that his answer was now prepared and ready to be filed. This motion was denied without prejudice and on February 27, 1956, defendant filed another motion to set aside both the default as well as the judgment and also for a new trial, with substantially the same allegations, which motion was also denied and this appeal has resulted.

As we follow the defendant's argument it appears to be his claim that, under both the statute and court rule hereafter cited, once his appearance is filed, even though he does not make answer, he is entitled to notice of all future proceedings, including advance notice of proceedings for taking default; also that under section 1 of Court Rule No. 47 (1945) as it stood when this judgment was entered it was the mandatory duty of plaintiffs' counsel to serve notice of the entry of the default judgment on defendant's counsel and file proof of service thereof; and, therefore, since this Rule No. 47 step was not observed, that the trial court was wrong in denying defendant's motion to set aside and especially in denying that part of his motion which sought a new trial, since the 20-day limitation on motions for new trials would not therefore have begun to run; and this despite that portion of Court Rule No. 28, § 4 (1945) providing that where any default is taken following personal service such default 'shall not be set aside unless the application shall be made within 4 months after such default is regularly filed or entered.'

(At the outset we should remind the profession that by the 1956 amendment to Court Rule No. 47 proof of service of notice on the other side of entry of judgment or rendition of verdict need no longer be made by counsel, the time for filing a motion for a new trial now beginning to run from the date of entry of the judgment. We may add that Honigman's Michigan Court Rules Annotated at page 106 of the 1957 pocket supplement nevertheless advocates continuance of the old practice as a wise precaution.)

We observe that under Court Rule No. 2, § 6 (1945) it is made the duty of all clerks of courts of record to 'forthwith' give notice in writing of all judgments (and certain other things there enumerated) entered in civil cases 'to the attorneys of record in the case,' but the record before us does not disclose whether this was done in this case. In any event we do not think it is controlling on our decision.

Defendant states in his concise statement of facts that 'A copy of the declaration and bill of particulars is not shown by the record to have been served on the defendant or his attorney.' But this statement is disputed by the plaintiffs in their counter statement and the record shows the defendant is in error.

Both the statute (C.L.1948, § 614.5 [Stat.Ann. § 27.815]) and the rule (Court Rule No. 8, § 7 [1945]) provide that a party who has appeared is entitled to notice of all future proceedings even though he has not pleaded. Neither state any exceptions. We further observe that while Connor v. Jochen, 171 Mich. 69, 137 N.W. 69, is often cited for the proposition that, following appearance, notice of all future proceedings is obligatory, the case actually holds quite the contrary in that the irregularity there (order pro confesso entered after appearance without notice) was held waived (171 Mich. at page 71, 137 N.W. at page 69) once the defendant had moved to set aside the default for other reasons.

As stated, defendant urges that he is entitled to advance notice of the taking of the default. He cites no controlling authority and we find none. We think that part of the defendant's possible confusion on this point results from his failure to adequately distinguish between the filing of the default papers--'taking the default,' as it is usually phrased--and the entry of the judgment on the default. If so he is not alone as a number of legal writers and even some cases have also been unfortunately prone to confuse the two. The distinction is important and sometimes vital. It is the proceedings to take the default which must be regular for the default to stand; not necessarily so in the entry of the judgment. The problem revolves about the proper interpretation of Court Rule No. 28, §§ 3 and 4 (1945). We believe the words in that rule clearly refer to the taking of the default rather than to the entry of any judgment based thereon. As we hope to demonstrate, the cases which require the taking of the default be regular before the 4-month limitation in that rule becomes effective do not apply to the entry of the default judgment.

The defendant seems to feel that after appearance he is entitled to advance notice of the taking of the default; otherwise the default is not regular. In this he is in error, although it is an error in which, as we have indicated, he is not entirely alone. Thus Searl in the 1941 supplement to his pioneer work on Michigan practice (Searl, Michigan Pleading and Practice, § 351) seemed clearly to advocate advance notice of the taking of the default, citing Connor v. Jochen, 171 Mich. 69, 137 N.W. 69. But the Connor Case did not in terms require advance notice, although this requirement has unfortunately been wrongly read into the rather general language there used.

Upon principle it seems clear there should be no requirement of advance notice before the taking of a default. The reason that any notice is given at all is because of Court Rule No. 8, § 7 (1945)--which is the general requirement, after appearance--and Court Rule No. 10, § 2 (1945), which specifically refers to motion practice. The latter rule by its express terms requires notice in advance of hearing. Court Rule No. 8, which applies to our situation, makes no such requirement.

The purpose of any notice is to give the opposite party an opportunity to be heard. Where a person appears and fails to file a timely answer, the right of the opposite party to take his default is a matter of course and no hearing is required to enforce that right. The taking of a default is an ex-parte proceeding and advance notice thereof would not only be unavailing but an idle and impractical thing in the absence of explicit procedures set forth by appropriate court rules as to what should happen in the event the opposite party should appear and seek to object to the taking of the default. After the default is taken, however, it is important for the defaulted party to know that his default has been taken so that he may have an opportunity to comply with the provisions of Court Rule No. 28 and take timely steps to set aside the default. We rather like the quotation from 1 Burrill's Practice (2d Ed.), p. 345, in Ketcham v. Kent Circuit Judge, 115 Mich. 60, 72 N.W. 1110, 1111, which states in part that in the case 'of the entry of common rules * * * it is not necessary for the opposite party to be personally apprised.' In our view the taking of a default is plainly a 'common rule' inasmuch as it is an order entered as a matter of course without any action or knowledge by the court.

When it comes to the matter of the entry of the default judgment, however, we are dealing with a positive action of the court as to which advance notice will give the opposite party an opportunity to be heard. A defendant may not want to contest basic liability but sometimes he may be keenly interested, say, in the amount of damages recovered. Again he may enthusiastically not want to contest his wife's action for divorce, but still want an opportunity to be heard on matters of support, custody or visitation of children and the always interesting question of alimony. In other words, an appearing but non-pleading defendant may frequently want to be apprised in advance of the taking of a prospective judgment of decree where the damages are unliquidated or uncertain or where the relief sought is to a large extent...