DOWNRIVER LOAN CO. v. Gabbert

37 Mich. App. 411 (1971) 195 N.W.2d 34

DOWNRIVER LOAN CO.
v.
GABBERT

Docket No. 10656.

Michigan Court of Appeals.

Decided December 8, 1971.

R.G. Corace, P.C. (by Wayne A. Smith), for plaintiff.

John R. Ryan, for garnishee defendant.

Before: BRONSON, P.J., and QUINN and DANHOF, JJ.

PER CURIAM.

Plaintiff has filed an appeal of right from an order setting aside a default against the garnishee defendant. Upon our review of the record, it is clear that such an order is interlocutory in nature and therefore may not be the subject of an appeal of right. GCR 1963, 806.1.

On May 6, 1970, plaintiff secured a judgment against the principal defendants. An affidavit for writ of garnishment was filed on July 31, 1970, and the garnishment writ was issued on that date. Garnishee summons was served upon garnishee defendant on August 5, 1970, and garnishee defendant thereafter filed a disclosure of liability to the principal defendants. Plaintiff then entered a default against the garnishee defendant for failure of the garnishee defendant to serve a copy of its disclosure upon plaintiff's attorney; garnishee defendant moved to set aside the default; said motion was granted by the trial court; and plaintiff timely filed a claim of appeal in this Court.

An order setting aside a default is a nonfinal, and hence interlocutory judgment. Quail v Cole, 260 Mich. 642 (1932).^[*] As such, it may be reviewed by this Court only upon the filing of an application for leave to appeal. Conlon v State Treasurer, 23 Mich. App. 646 (1970). No application for leave to appeal having been filed, this Court can do no more than dismiss the appeal. Fox v. Board of Regents of the University of Michigan, 375 Mich. 238 (1965).

The appeal is therefore dismissed. No costs, appellee not having initiated a motion to dismiss pursuant to GCR 1963, 817.5.

NOTES

[*] See also, American Eutectic Welding Alloys Sales Co, Inc, v Grier, 363 Mich. 175 (1961); United Insurance Company of America v Goldenberg, 366 Mich. 167 (1962); Ordon v Sarko, 371 Mich. 689 (1963).