Westlawn Cemetery Ass'n v. Wayne Circuit Judge , 238 Mich. 119 ( 1927 )

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. Circuit Court Rule No. 32, § 4, 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. OttawaCircuit Judge, 123 Mich. 617; McWilliams v. Lenawee CircuitJudge, 142 Mich. 226. And proceedings taken on the strength thereof must be regular proceedings. W. H. Warner Coal Co. v.Nelson, 204 Mich. 317, in which case the only proceedings taken on the strength of the default was the entry of an invalid judgment. But in Kentucky Wagon Manfg. Co. v. Kalamazoo CircuitJudge, 208 Mich. 267, 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 No. 19, and section 12441, 3 Comp. Laws 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 No. 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. Railway, 147 Mich. 199; Axtell v. Gibbs, 52 Mich. 639; Gunn, v. Gunn, 205 Mich. 198.

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

4. The order pro confesso was signed by the deputy clerk. It recited that it was made on motion of plaintiffs' attorney. It is urged that it should have been signed by plaintiffs' attorney and that this is a sufficient irregularity to toll the rule. But the order was an order of course, required no action by the court, and the clerk in entering it performed purely a ministerial duty. Upon principle, this objection is answered byCarmichael v. Schaefer Heights Land Co., 217 Mich. 420. In that case it was insisted that the rule requiring the filing of the order was not complied with by entering it. It was there said by Mr. Justice WIEST, speaking for the court:

"It will be noted that under the rule the default may be filed, while under the statute the default may be filed or entered. Under the old practice defaults were entered in the common rule book or filed. We are of the opinion that it makes no difference whether a default is entered or is filed, as in either event it serves the same purpose, is in the same case, on file in the same office and noted upon the calendar."

5. The next objection urged is that the decree was not properly entitled, in that the caption did not contain the names of all the plaintiffs. In the case of W. H. Warner CoalCo. v. Nelson, supra, the only proceedings taken on the strength of the default was the entry of an invalid judgment, while here on the strength of the default proceedings which are not questioned, i. e., the issuance of a commission to take testimony, the taking and filing it were taken. There is force in the suggestion that these were proceedings in the case, taken on the strength of the default, and bring the case within the rule. In Cleveland, etc., R. Co. v. Berrien CircuitJudge, 187 Mich. 444, both opinions proceed upon the theory that if any proceedings (regular, of course) are taken on the strength of the default the power to set aside the default is limited to the six months' period, the court dividing only on the question of whether the filing of a note of issue was a proceeding. But we do not think a defective caption to the decree a sufficient irregularity to prevent the running of the rule. In Fasquelle v. Kennedy, 55 Mich. 305, the caption was defective but it was held that the statute was directory and the judgment valid.

6. None of the foregoing objections were regarded as serious by the learned trial judge. The default was set aside for the reason we shall now consider. Defendants filed affidavits to the effect that when they were served the officers did not show them the original writ with the seal of the court, and the trial judge reached the conclusion that the service was not good. He cites in his opinion as authority for setting the default aside the recent case of Whirl v. Reiner, 229 Mich. 114. But we think the learned trial judge misconceived the holding of this court in the Whirl Case. In that case there was actually a valid service, but the record did not show it; it showed an invalid service. Holding that the record controlled, this court said the default should have been set aside. Here the record shows a valid service. Defendants seek to show that it was invalid by evidence dehors the record. If we follow the holding in theWhirl Case we must hold that the state of the record at the time the default was entered controls, and as it shows a proper service, the default was regularly entered. We are not disposed to deviate from what was held in that case. While this disposes of this question, attention should be directed to the recent case of Garey v. Morley Bros., 234 Mich. 675.

If necessary the writ will issue to the successor of Judge Codd. Plaintiffs will have costs.

SHARPE, C.J., and SNOW, STEERE, WIEST, CLARK, and McDONALD, JJ., concurred. BIRD, J., did not sit.