Borg v. Thomas , 338 Mich. 669 ( 1954 )

338 Mich. 669 (1954) 62 N.W.2d 466

BORG
v.
THOMAS.

Calendar No. 46,003.

Supreme Court of Michigan.

Decided February 18, 1954.

Balfour Peisner, for plaintiff.

Hutson, Merritt & Petermann (Maurice A. Merritt, of counsel), for defendants.

DETHMERS, J.

Plaintiff's appeal, on leave granted and in the nature of mandamus, is from an order denying his motion to set aside a default judgment entered against him on defendants' cross declaration.

The order of default filed by defendants recites that their cross declaration is taken as confessed by plaintiff for failure to answer the same within 15 days after receipt thereof by his attorney. The record and file contain no proof of service of defendants' cross declaration or of notice of proceedings to take the default or of any other proceedings on plaintiff, his attorney, or anyone else. This was urged on the trial court, as on appeal here, as grounds for setting aside the default.

Michigan Court Rule No 27, § 4 (1945), requires replies to answers and answers to cross bills to be filed and served within 15 days after service of a copy of the answer or cross bill on plaintiff. This must be considered to apply equally to answers to cross declarations.

Court Rule No 28, § 1 (1945), provides that if either party fails to file and serve any pleading within the time limited by the rules, the opposite party may file or enter a default. Section 3 of that rule provides that, if cross defendant has failed to answer, the cross plaintiff may take the cross declaration as confessed by filing an affidavit showing cross defendant's failure to answer it and the manner of service thereof on him.

CL 1948, § 620.1 (Stat Ann § 27.1351), provides that upon due proof of service of any declaration or process requiring an appearance, answer or plea, a default may be filed or entered for want thereof within the time provided by law or rule of court.

Court Rule No 8, § 7 (1945), provides that a party who has appeared shall be entitled to notice of all future proceedings in the cause.

The record fails to disclose compliance by defendants with the noted requirements of the rules and statute prerequisite to taking a default.

In Dades v. Central Mutual Auto Insurance Co., 263 Mich. 260, 262, this Court said:

"We have repeatedly held that unless the files of the court disclose proper proof of service of process a default entered is irregular; and the test is the condition of the file ``on the day of default.' This is true notwithstanding service has been actually and lawfully made. Whirl v. Reiner, 229 Mich. 114. To the same effect as being controlling in the instant case, see Stanczuk v. Pfent, 231 Mich. 689; Westlawn Cemetery Ass'n v. Wayne Circuit Judge, 238 Mich. 119; Standard Oil Co. v. Brukwinski, 242 Mich. 49."

The quoted language relating to proof of service of process on a defendant applies with equal force to the necessity for proof in the file of service of defendants' cross declaration on plaintiff or his attorney before it may be taken as confessed for failure to answer. The judgment must be vacated, the default set aside and plaintiff permitted to plead and proceed to trial on the merits. If necessary, the writ will issue. Costs to plaintiff.

BUTZEL, C.J., and CARR, BUSHNELL, SHARPE, BOYLES, and REID, JJ., concurred.

KELLY, J., took no part in the decision of this case.