Domzalski v. Guzynski

Default judgment, after personal service of summons and appearance of defendant, was regularly entered August 16, 1935. Motion, filed April 21, 1936, to set aside the default and judgment was denied May 4, 1936. Petition for rehearing of motion to set aside default and judgment was filed by defendant May 9, 1936, granted November 21st, and order setting aside the judgment was entered November 23, 1936. Motion by garnishee defendant to set aside the latter order was denied January 4, 1937.

Judgment against garnishee defendant had been entered September 21, 1935. After issue of fieri facias against her, she had paid in full and taken assignment of the principal judgment on May 19, 1936. She prays writ of mandamus to compel the court to vacate the order setting aside the judgment.

Personal service on defendant having been made, proceedings taken after default on the strength thereof, and the motion to set aside the default and judgment not having been made within four months after the default was regularly entered, the order setting aside the judgment was void. Court Rule No. 28, § 4 (1933); Vozbut v. Pomputis, 277 Mich. 212; Zirkaloso v. WayneCircuit Judge, 246 Mich. 210.

Writ granted, with costs.

NORTH, WIEST, BUTZEL, BUSHNELL, SHARPE, POTTER, and CHANDLER, JJ., concurred.