Gordon v. City of Detroit

R. B. Burns, J.

The circuit judge denied plaintiffs "Motion For Rehearing and/or to Reinstate” plaintiffs case after the judge had vacated a previous order of reinstatement. Plaintiff appeals and we affirm.

The facts are not disputed. On June 12, 1972, plaintiffs action was dismissed for lack of progress. On May 4, 1973, plaintiff filed a motion to reinstate. The motion was not served on either defendant. On May 14, 1973, the attorney for the City of Detroit signed a stipulation to reinstate on condition that the defendant union also so stipulate. The union was never contacted and its stipulation was not obtained. Nevertheless, the plaintiff presented the stipulation to the judge who reinstated the case. On May 3, 1974, pretrial was held, at which only the attorney for the city appeared. The union did not appear as it did not have notice of the reinstatement. On July 16, 1974, pursuant to motion brought by defendant city the order of reinstatement was vacated. On August 5, 1974, plaintiffs motion for reinstatement was denied.

The parties agree that the stipulation for reinstatement signed by the city was conditioned upon the plaintiff obtaining a like stipulation from the union. As plaintiff did not secure such a stipulation, the trial court was correct in vacating the order reinstating the cases.

Plaintiff did not claim that the order dismissing his case for lack of progress was not regular. In Hoad v Macomb Circuit Judge, 298 Mich 462, 469; 299 NW 146, 149 (1941), the Court stated:

" * * * denial of reinstatement after dismissal under the no progress statute is discretionary providing the dismissal is regular and within the statutory mandate.”

We find no abuse of discretion.

Affirmed. Costs to defendants.