Zinn v. Fischer Distributing Co., Docket No. 8129
| Decision Date | 29 October 1970 |
| Docket Number | Docket No. 8129,No. 2,2 |
| Citation | 27 Mich.App. 591,183 N.W.2d 859 |
| Parties | Clinton ZINN and Elaine R. Zinn, Plaintiffs-Appellees, v. FISCHER DISTRIBUTING COMPANY and Raymond Wellington Fischer, jointly and severally, Defendants-Appellants |
| Court | Court of Appeal of Michigan — District of US |
William J. Kane, Kane & Mayfield, Flint, for defendants-appellants.
Robert A. Grimes, Flint, for plaintiffs-appellees.
Before QUINN, P.J., and V. J. BRENNAN and ZIEM, * JJ.
Defendants appeal from the denial of their motion to set aside a default judgment and the default on which it was based.
October 22, 1968, plaintiffs filed their complaint. Defendants were personally served with summons and a copy of the complaint on October 29, 1968. Their default was entered December 27, 1968, and default judgment was taken March 24, 1969 and filed March 26, 1969. June 24, 1969, defendants filed a motion to set aside the default judgment and the default on which it was based. By order dated September 3, 1969, and filed September 9, 1969, this motion was denied.
GCR 1963, 520.4 provides that, 'If personal service was made upon the party against whom the default was taken, it shall not be set aside unless application to have it set aside is made either before the entry of judgment or within four months after the default was regularly filed or entered except as provided in Rule 528.' The facts preclude setting aside the default under GCR 1963, 520.4.
GCR 1963, 528.3(6) provides: 'On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for any other reason justifying relief from the operation of the judgment.' The grant or denial of relief under this rule is discretionary. Appellate relief from the action of the trial court requires a finding by this Court that the trial court abused its discretion.
In reviewing this record to determine whether or not the trial court abused its discretion, we are mindful of the established policy that courts are strict in setting aside defaults regularly entered. White v. Sadler (1957), 350 Mich. 511, 521, 87 N.W.2d 192. Although White does not so hold, there is an indication in the opinion that if it appeared to be unconscionable to permit the default judgment to stand, appellate relief would be granted.
In McDonough v. General Motors Corporation (1967), 6 Mich.App. 239, 148 N.W.2d 911, this Court found it would be unconscionable 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...
To continue reading
Request your trial
-
Cox v. Weinberger
...at this stage would be a finding that "manifest injustice or an unconscionable result flows from the default". Zinn v. Fischer Distributing Co., 27 Mich.App. 591, 183 N. W.2d 859 (1970), quoting McDonough v. General Motors Corp., 6 Mich.App. 239, 148 N.W.2d 911 (1967). Under the circumstanc......
-
Midwest Mental Health Clinic, P.C. v. Blue Cross and Blue Shield of Michigan, Docket Nos. 60493
... ... 674] entered default judgments. Griffin, supra, Zinn v. Fischer Distributing ... Co., 27 Mich.App. 591, 183 ... ...
-
Collins v. Kerstiens
...policy of the courts in this state is against setting aside defaults which are regularly entered. Zinn v. Fischer Distributing Co. (1970), 27 Mich.App. 591, 183 N.W.2d 859. As the default in this case was regularly entered and the defendants have not properly moved to set it aside, we must ......
-
Borovoy v. Bursar Realty Corp., Docket Nos. 77-4122
...policy of the courts in this state is against setting aside defaults which are regularly entered. Zinn v. Fischer Distributing Co., 27 Mich.App. 591, 593, 183 N.W.2d 859 (1970), Lv. den. 384 Mich. 796 GCR 1963, 520.4 provides that a default judgment may be set aside "only if good cause is s......