Emahiser v. Common Pleas Judge , 18 Mich. App. 295 ( 1969 )

18 Mich. App. 295 (1969) 171 N.W.2d 47

EMAHISER
v.
COMMON PLEAS JUDGE

Docket No. 6,236.

Michigan Court of Appeals.

Decided June 26, 1969.

Albert H. Zlatkin, for plaintiff.

Garan, Lucow & Miller, for defendant.

Before: LESINSKI, C.J., and FITZGERALD and V.J. BRENNAN, JJ.

V.J. BRENNAN, J.

This is an appeal from an order of superintending control^[*] over Judge John W. Connolly of the common pleas court for the city of Detroit, directing him to vacate an order which reinstated a certain replevin action dismissed for lack of progress. The events preceding the order of superintending control may be related as follows:

On November 15, 1967, Sears, Roebuck & Co. instituted a replevin action against plaintiff, Richard Emahiser, in the common pleas court for the city of Detroit. A writ of replevin was issued and the bailiff took possession of a television-phonograph console from Emahiser. The replevin proceedings were dismissed on December 7, 1967, for lack of progress as neither Emahiser nor Sears, Roebuck & Co. took further action. Emahiser had telephoned the credit department of Sears, and upon being told that he would have to pay the balance owing on the console plus $48.00 in costs and attorney fees, he informed Sears that they could "keep the merchandise". Feeling that Emahiser had waived any right in the console, Sears decided not to pursue a judgment on the writ.

On January 11, 1968, Emahiser and his wife brought suit against Sears, Roebuck & Co. and its attorney, William J. DeBiase, in Wayne county circuit court, seeking $1,150.00 as damages for the wrongful seizure of the console.

On March 4, 1968, Sears, Roebuck & Co. filed a motion to reinstate the replevin proceedings in the common pleas court. On March 18, 1968, Judge Connolly granted the motion to reinstate pursuant to common pleas court rule 16, § 2 (as amended March 18, 1968). In response to this grant, Emahiser filed a complaint in Wayne county circuit court seeking the order of superintending control from which this appeal is taken.

Emahiser contended that retroactive application of common pleas rule 16, as amended, is beyond the court's jurisdiction and, alternatively, that Judge Connolly erred in ruling that good cause for reinstatement had been shown.

At the time of the dismissal of the replevin action for lack of progress, common pleas rule 16 did not allow for reinstatement once dismissal had been ordered. This rule was subsequently amended, however, to provide:

"Sec. 2. An action dismissed for lack of progress may be reinstated in conformity with the provisions of this rule by the Presiding Judge upon good cause shown.

"Sec. 4. An action may not be reinstated more than once, or after the elapse of six months from the date of the dismissal thereof."

The motion to reinstate was made well within the 6-month limitation of § 4. Perhaps fortuitously, the effective date of these amendments coincided with the day on which plaintiff's motion was heard.

The issue presented by the reinstatement is twofold: Can rule 16, as amended, be applied to an action dismissed at a time when reinstatement was not permitted, and if it can, did Judge Connolly abuse his discretion in holding that "good cause" for reinstatement was shown?

Directing attention to the first aspect, the power of the common pleas court to promulgate rules of procedure is unquestioned. CL 1948, § 728.17 (Stat Ann 1962 Rev § 27.3667) provides in part:

"* * * Such judges shall prescribe the form of all summons, writs and other process to be issued by such court and may adopt rules not inconsistent with the other provisions of this act governing the time and manner of filing and serving pleading and the form thereof, the dismissal and adjournment of causes, the entry and setting aside of defaults and default judgments, the extension of time for pleading, and all other matters of pleading, practice, and procedure not inconsistent with the provisions of this act."

The difficulty lies in the determination whether the pending matter is to be governed procedurally by the newly promulgated rule or, when the rules conflict, by the superseded rule in effect at the commencement of the action. GCR 1963, 14 affords certain guidance in resolving this problem:

"These rules will take effect on January 1, 1963. They govern all proceedings in actions brought after that date and also all further proceedings in actions then pending except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible, or would work injustice, in which event, the former procedure applies."

The newly devised rule, or amendment, is thus prima facie applicable. The former rule governs only if the use of the new rule would work an injustice or is not feasible.

With this standard in mind, we hold that rule 16, as amended, is applicable. The interest protected by the dismissal for lack of progress is insignificant when contrasted to the countervailing policy that the controversy be adjudicated on its merits. See the separate opinion of DETHMERS, KELLY and O'HARA, JJ. in Walters v. Arenac Circuit Judge (1966), 377 Mich. 37. This contrast is especially striking when, as here, the rule allows reinstatement only within a 6-month period after dismissal (and then only for good cause), and the reinstatement is granted within that period. It is apparent that no injustice has been worked by the application of the amended rule.

Rule 16, as amended, permits reinstatement upon "good cause shown." Judge Connolly found that Sears, Roebuck & Co. was justified in relying on Emahiser's statement and believing that he had waived his rights in the console. He accordingly ruled that good cause had been shown. We are unable to say that Judge Connolly abused his discretion.

Order of superintending control is hereby vacated.

Common pleas order to reinstate proceedings is hereby affirmed. Costs to defendant.

All concurred.

NOTES

[*] MCLA § 600.615 (Stat Ann 1962 Rev § 27A.615); GCR 1963, 711.