Geib v. Kent Circuit Judge , 311 Mich. 631 ( 1945 )

In the opinion written by Mr. Justice REID it is held that the writ of mandamus should be denied. I concur in that holding; but solely on the ground that under the circumstances of this case as disclosed in my Brother's opinion the order of the circuit judge setting aside the judgment and default entered against the garnishee defendant was not an abuse of discretion. She relied upon the circuit judge's statement and through no fault of her own the garnishee defendant was misled. Her being so misled was tantamount to constructive fraud. Therefore, since the issuance of a writ of mandamus by this Court is discretionary or a matter of grace (Toan v. McGinn, 271 Mich. 28, and Ross v. St.Clair Circuit Judge, 291 Mich. 70), the writ is properly denied.

However, because it is a matter of importance in practice and procedure, the following should be stated. In part at least the holding of the trial judge seems to have been based upon the conclusion that the writ of garnishment issued in the instant case was ineffective because it erroneously recited: "Witness, the Honorable Thaddeus B. Taylor, Circuit Judge," when in fact there was no such circuit judge. Such recital was surplusage and did not invalidate the writ of garnishment. The statute (3 Comp. Laws 1929, § 14857 [Stat. Ann. § 27.1855]) provides: "a writ of garnishment shall be issued, sealed and tested in the same manner as writs of summons." The form of a summons is provided by rule in this State; and it is not required thereby that the name of the judge of the circuit court from which the writ issues shall appear thereon. In this particular the present court rule does not differ from the earlier court rule. See Court Rule No. 14, § 3 (1945).

Notwithstanding the garnishee defendant's default was entered more than four months before the motion to vacate was made (See Court Rule No. 28, § 4 [1945], being the same as corresponding provisions in 1933 rules), we think the order of the trial court setting aside the default and judgment should not be disturbed by mandamus, it being a writ of grace. In so holding we place decision solely on the unusual circumstances of the instant case wherein the garnishee defendant was inadvertently misled by the judge of the court to which she had been summoned. Our holding herein is not to be construed as a departure from our former decisions wherein it has been quite uniformly held that a default regularly entered after personal service will not be vacated unless the application to vacate is made within the time limit provided. For cases so holding see note under Statutes Annotated, § 27.1859.

Mandamus is denied, but the writ of garnishment served should be held to be a valid writ, and the garnishee defendant given 15 days after our decision herein within which to make disclosure. The case is remanded for further proceedings. Defendant will have costs of this Court.

STARR, C.J., and WIEST, BUTZEL, BUSHNELL, SHARPE, and BOYLES, JJ., concurred with NORTH, J.