Wolodzko v. Burdick

• Decision Date: 03 September 1969
• Docket Number: J,No. 7,7
• Citation: 382 Mich. 528,170 N.W.2d 9
• Parties: Joseph WOLODZKO, Plaintiff-Appellant, v. Benjamin D. BURDICK, Wayne County Circuit Judge, Defendant-Appellee. une Term.
• Court: Michigan Supreme Court

Page 9

170 N.W.2d 9

382 Mich. 528

Joseph WOLODZKO, Plaintiff-Appellant, v. Benjamin D. BURDICK, Wayne County Circuit Judge, Defendant-Appellee.

No. 7, June Term.

Supreme Court of Michigan.

Sept. 3, 1969.

Moll, Desenberg, Purdy, Glover & Bayer, Detroit, for plaintiff-appellant.

Kelman, Loria, Downing & Schneider, Detroit, for appellee.

Before the Entire Bench.

BLACK, Justice.

In 1935, by P.A. 45, the legislature amended the then insurance code by adding a new section 33a, 'to follow section 12460 of the compiled laws of 1929.' Section 33a is now section 3036 of the insurance code of 1956 (C.L.S.1961, § 500.3036). It reads:

'Sec. 3036. Whenever an appeal is taken from any judgment in any case wherein it shall appear to the court that all or a part of the particular liability of the appellant thereunder is insured against, in and by any surety company or insurance carrier, authorized to do such business in Michigan, and the court is satisfied of the applicable coverage of such policy or suretyship, it shall not be required of the appellant to provide any appeal bond or bond to stay execution pending such appeal, but such insurance carrier or surety company may be required by the court and is hereby given authority to execute its written recognizance to the opposite party or parties for the payment of the taxable costs of such appeal: Provided, Such surety company or insurance carrier shall deposit with said court a copy of said insurance policy or bond and shall admit its liability thereunder, and agree to pay such judgment against its insured, if any, as shall be affirmed by said appellate court, but not exceeding the amount of the liability under said policy or bond; and in such case the court having jurisdiction thereof, on its own motion may enter judgment against said surety company or carrier to such extent without further proceedings.'

Over the years the applicability of this statutory provision, to circumstances as now at bar, has been controverted and reviewed 3 times. See Central Mutual Ins. Co. of Chicago v. Kalamazoo Circuit Judge (1936), 278 Mich. 221, 270 N.W. 275; Checker Mutual Automobile Ins. Co. v. Wayne Circuit Judge (1951), 330 Mich. 553, 48 N.W.2d 129, and Mayne v. Saginaw Circuit Judge (1953), 337 Mich. 425, 60 N.W.2d 179. Today's question, brought here on granted application for leave to appeal (381 Mich. 784), is whether section 3036, which plaintiff proposes to utilize for a stay of execution pending appeal from a judgment entered against him in favor of one Ethel K. Stowers, invidiously discriminates against Mrs. Stowers.

The 'amount of the liability under said policy,' referring to the liability policy plaintiff has proffered under section 3036, is limited to $10,000. The amount of the judgment possessed by Mrs. Stowers is $30,000.

The trial judge, deeming section 3036 unconstitutional for application to plaintiff's said appeal, denied a stay. So did the Court of Appeals, by order without opinion.

Section 3036 designates a class of appellants which, by the fact of purchase and maintenance of liability insurance, or of having obtained a qualifying bond (of suretyship), is entitled to employ such insurance (or bond) for the purpose of staying proceedings on appeal. Since the section is not in conflict with any rule of court, GCR 1963, 808 and 853 included, it with presently quoted sections of the RJA of 1961 constitutes an effective rule of Court exactly as if written into our rule book. See Darr v. Buckley (1959), 355 Mich. 392, 94 N.W.2d 837 and Perin v. Peuler (1964), 373 Mich. 531, 130 N.W.2d 4.

This does not mean that rules of court are exempt from constitutional test. It does mean that we are dealing with a question of appellate procedure, the promulgation as well as control of which is vested constitutionally with the judicial branch. We therefore approach the constitutional issue with that fact in mind.

Does section 3036 violate Mrs. Stowers' right to equal protection because, in its application here, she is receiving Pendente the protection of a $10,000 stay bond only when her judgment amounts to $30,000? The answer may be found by arraying, with that section, 3 additional sections of the Revised Judicature Act, reading in order as follows:

'Sec. 2605. If the party applying for a stay of proceedings is unable to give a stay bond by reason of poverty, the judge may, upon due proof of inability for such reason, grant such stay without requiring such bond upon such conditions and for such reasonable time as the judge may determine.' (C.L.S.1961, § 600.2605).

'Sec. 2611. In any suit or proceeding in which the state, or any state officer duly authorized for that purpose, or any corporate body in charge of any state institution, or any municipal corporation, is a party, no bond shall be required to be given by any such party as a prerequisite to the taking of an appeal, or the taking of an order staying proceedings.' (C.L.S.1961, § 600.2611).

'Sec. 2615. No bond, obligation, or security may be required of the state of Michigan, or of any of its departments, institutions or subdivisions in any action instituted by or in which the state of Michigan or any of its departments, institutions or subdivisions is a party, or for the issuance of any warrant or levying of any execution on behalf of said parties.' (C.L.S.1961, § 600.2615).

Each of the quoted sections, section 3036 specifically included, exhibits a valid reason for providing the same benefit for the class which the section protects. Each makes provision for entire exemption, should the appellant qualify thereunder, from execution or other process of enforcement pending appeal. Different reasons support the provided right. But all are relevant to achievement of the common legislative purpose and enactment which, by Rule 16, we have adopted. That purpose, made clear by each section, is and has been freedom from harassment, pending appeal, of specific appellants the situation of whom qualifies each for special treatment according to the permissibly discretionary judgment of a legislative assembly. That this Court, armed and charged as it is with the powers and duties written into Const.1963, art. 6, § 5, might--without offending the Fourteenth Amendment--repeal all 4 sections, and then reenact them as effective rules of Court, goes without saying. Section 3036 accordingly is valid as against the defendant's appeal to the principle of equal protection.

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