Smak v. Gwozdik

This is an appeal from an order of the circuit judge granting defendants' motion to set aside a default judgment. There was personal service on defendants of an alias summons June 13, 1933. No further proceedings were had in this suit until November 20, 1933, when defendants' default for nonappearance was entered. On the following day plaintiff filed his declaration. Testimony was taken and judgment for $800 was entered for plaintiff November 25, 1933. Approximately 6 years later this motion to set aside the judgment was made, heard, and granted.

Notwithstanding defendants deny service of the summons, for present purposes we will assume personal service was obtained. Since it was more than 4 months after such service that this motion to set aside the judgment was made, the power of the trial court to grant the motion depends upon whether the default of defendants was regularly entered. Court Rule No. 28, § 4 (1933). W. H. Warner Coal Co. v. Nelson, 204 Mich. 317; Whirl v. Reiner, 229 Mich. 114; Stanczuk v. Pfent, 231 Mich. 689;Dades v. Central Mutual Auto Ins. Co., 263 Mich. 260.

The default was not regularly entered for the following reason: Court Rule No. 27, § 1 (1933), provides: "A plaintiff must file his declaration within 15 days after the commencement of the action," Under the rule plaintiff should have filed his declaration within 15 days after the summons was issued, i. e., within 15 days after February 2, 1933. This he failed to do; and plaintiff himself therefore was in default for want of proper procedure after the expiration of the 15-day period until his declaration was filed, November 21, 1933. The matter of complying with the rule provision as to a plaintiff filing his declaration is not an idle ceremony. Its obvious purpose is that the one against whom suit is brought may, without even entering his appearance, ascertain from the court file the exact nature of the claim plaintiff has made against him. This opportunity is not available to the party sued unless plaintiff's declaration is filed within the 15 days and therefore before the time has expired within which plaintiff may enter defendant's default. If the party sued ascertains that the claim as made against him is just, obviously there is no occasion for entering an appearance; but, on the other hand, if plaintiff's claim as set forth in his pleading is unjust, the party sued should have opportunity to enter his appearance after having ascertained such to be the fact and before his default is entered.

It was within the discretion of the trial court to set aside the judgment because it followed a default of defendants which was irregularly entered. Affirmance of the order of the trial judge might well be rested solely on the ground that on this appeal there is no showing of an abuse of discretion.

But there are other circumstances disclosed by this record which abundantly justify affirmance of the trial court's order. The original default judgment was entered by the same circuit judge who heard and granted the motion to set aside the judgment. Plaintiff's suit was for alleged slander, malicious prosecution, and false imprisonment. According to the allegations of his declaration plaintiff's cause of action arose in February, 1930; but as above noted the instant suit was not instituted until the original summons was issued, February 2, 1933. One of the grounds urged in support of defendants' motion to vacate the judgment is that on the face of plaintiff's declaration it appears his cause of action was outlawed before suit was instituted. 3 Comp. Laws 1929, § 13976 (Stat. Ann. § 27.605). While it does not appear that the circuit judge particularly relied upon this circumstance in setting aside the judgment, still it is too obviously a sufficient reason to be overlooked. In fact it might well be held that had the circuit judge, under the circumstances, refused to set set aside the judgment, it would have been an abuse of discretion.

The order of the circuit judge is affirmed; and defendants will be allowed 15 days after decision of this court within which to file their answer to plaintiff's declaration. Appellees will have costs of this court.

BUSHNELL, C.J., and SHARPE, CHANDLER, McALLISTER, and BUTZEL, JJ., concurred with NORTH, J.