Hartman v. Roberts-Walby Enterprises, Inc. , 380 Mich. 105 ( 1968 )

BeeNNAN, J.

(dissenting). I must respectfully disagree with my learned Brothers. The appeal, which was dismissed by the Court of Appeals in this case, was filed on October 24, 1966. The claim of appeal was filed within 20 days of the October 10th entry of an order denying defendant’s petition for a rehearing of a motion to set aside the default judgment. The default judgment was entered on May 25, 1966, and no appeal was claimed therefrom within 20 days. Later, a motion to set aside the default judgment was filed on June 27, 1966, and an order denying the motion to set aside the default judgment was entered on August 4, 1966. In the meantime, on July 18, 1966, defendant had filed a petition for rehearing of the motion to set aside tbe default judgment. The applicable court rule, GCR 1963, 803.1, governing appeals as of right, limits appeals as of right from motions for rehearing to those motions for rehearing which are filed within 20 days of the judgment or order derivatively appealed from. Thus, the provision of GCR 1963, 528, giving a party one year to move for relief from a judgment does not create a new appeal as of right after the original time limits have run out. If, indeed, an order denying a petition for rehearing of a motion to set aside a default judgment is ap-pealable as of right within 20 days, then it would also be true that an order denying a petition for rehearing of a motion for rehearing of a motion to set aside a default judgment would also be ap-pealable as of right within 20 days. And so indeed, would an order denying a petition for rehearing of a motion for rehearing of a motion for rehearing of a motion to set aside a default judgment be appealable within 20 days as a matter of right. And so it would go on ad infinitum. The motion to set aside the default judgment in this case, not having been made within 20 days of the judgment itself, was not appealable as a matter of right. No petition for rehearing thereof would enjoy a higher status than the' motion itself.