Burk v. Amos ( 1933 )

The record does not disclose that the summons issued herein was served on the defendant Robert H. Amos. It does appear that a motion for the appointment of a receiver was made on November 8, 1930, and denied, conditionally, on November 11, 1930, and a petition to adjudge the defendants in contempt, heard and denied on December 6, 1930, and an order made appointing a receiver on December 11, 1930.

On January 5, 1931, an affidavit of plaintiff's at torney was filed, in which he stated:

"That on November 8, 1930, he was above the age of 21 years and of sound mind and discretion; that on said day he served a true copy of bill of complaint and application for appointment of receiver attached hereto, on Colin J. McRae, attorney, who voluntarily appeared for Robert H. Amos and Florence B. Amos, defendants herein, at Detroit, Michigan, by handing to said Colin J. McRae said true copy of said bill of complaint and application for appointment of receiver."

An order pro confesso was entered on that day and an affidavit of regularity on the following day. On January 9th defendants moved to set aside the default. This motion was based on the affidavit of their attorney, Colin J. McRae, in which he stated that his former appearance (a copy of which does not appear in the record) had been special and for the defendant Florence Amos alone, and denied that a copy of the bill of complaint and application for appointment of a receiver had been served on him, as averred in the affidavit of plaintiff's attorney above referred to. Attached to this petition was a copy of the joint answer of the defendants, verified by them. The docket entries show that this motion was dismissed on January 17th, but the order to that effect, which would doubtless disclose the reason therefor, is not in the record.

The docket entries also disclose that on January 17th the cause was heard "and decree for plaintiff ordered;" that on January 26th a "motion to set aside default of defendant granted, upon payment of $100 by January 28, 1931." Apparently this payment was not made, and on January 28th the decree was signed and filed, and enrolled on February 20th. It recites:

"This cause having come on to be heard upon the pleadings and proofs taken therein in open court, and the court being advised in the premises, it is found that the allegations in the bill of complaint are true."

It fixed the amount due on the land contract, and ordered payment of the same. It further provided that the moneys paid to the clerk of the court by the receiver should be paid out by him —

One-half to Abraham Slutsky and Samuel D. Frankel, attorneys for plaintiff herein, and one-half to Colin J. McRae, attorney for defendants herein."

Below the signature of the trial judge thereto appears the following:

"We hereby approve the above decree.

"ABRAHAM SLUTSKY, "Attorney for plaintiff. "COLIN J. McRAE, "Attorney for defendants, "ROBERT H. AMOS and "FLORENCE B. AMOS. "February 20, 1931.

"Rece'd. of Thomas Farrell, county clerk, ck. $124.83.

"ABRAHAM SLUTSKY, "Attorney for plaintiff. "February 20, 1931.

"Rec'd. of Thomas Farrell, county clerk, ck. $124.84.

"COLIN J. McRAE, "Attorney for defendants."

On March 23, 1931, the defendants, appearing by their present attorneys, petitioned the court to set aside and vacate the decree for the reason that "no service of process was ever made on the defendant, Robert H. Amos," and the court was without jurisdiction to render it. This petition was supported by the affidavit of Robert H. Amos, who deposed "that no process was ever served upon him," and that "he is informed that no appearance was ever entered in said cause for him." An affidavit of one of defendants' attorneys, verifying the docket entries in the case, was also attached. After a hearing thereon, an order was made denying the petition, on June 8, 1932. It is from this order that the defendants have taken this appeal.

No leave to appeal was applied for or granted. Under our holding in Mack International Truck Corp. v. Palmer, 259 Mich. 234, the appeal would have been dismissed had motion been made therefor.

But, without disposing of it for this reason, we may say that the approval of the decree and the acceptance of benefits under it by counsel for both defendants estop the defendant Robert H. Amos from attacking it where no claim is made of fraudulent conduct on the part of the attorney who assumed to act for him.

The appeal is dismissed; with costs to appellee.

McDONALD, C.J., and CLARK, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred with SHARPE, J.