Smak v. Gwozdik , 293 Mich. 185 ( 1940 )

The circuit judge was in error.

The suit was commenced by original writ with personal service on defendants. The writ was issued February 2, 1933, returned, unserved, April 28, 1933, and an alias summons was returned, served, June 17, 1933. November 20, 1933, default of defendants for want of appearance was entered. November 21, 1933, plaintiff's declaration was filed. November 25, 1933, judgment on hearing and proofs under such default was granted and entered. About six years later, when execution was taken out on the judgment, on motion of defendants, the court held the judgment void because the declaration was not on file the day the default was entered.

The process, duly served, gave the court jurisdiction of the action and the parties, and the claimed irregularity in filing the declaration the day after entry of default for want of appearance, instead of a day earlier, worked no prejudice to defendants, and the irregularity, if any, did not go to the jurisdiction of the court to take proofs and render judgment.

As said in Torrans v. Hicks, 32 Mich. 307:

"The affidavit on which the order pro confesso was entered was filed three days after that order. This was an irregularity, but as the proof was filed before the decree was made, there was no want of authority to make the decree."

Defendants could not have the judgment vacated on a ground which would not open the default.

Court Rule No. 28, § 4 (1931), in force at the time the judgment was taken, provided:

"In all cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within six months after such default is regularly filed or entered."

Section 4, Court Rule No. 28 (1933), now in force, relative to defaults, provides:

"Any order entered under this rule may be set aside on special motion for cause shown, in the discretion of the court, on terms. In actions at law, the party desiring to have a default set aside shall, as soon as practicable after he shall know or have reason to believe that the default has been filed or entered, file and serve an affidavit of merits, and make application to the court to have the default set aside. * * * In all cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within four months after such default is regularly filed or entered."

The process served upon defendants not only notified them of the institution of the suit but, as well, warned them of the penalty in not appearing in answer to such summons.

The claimed irregularity did not invalidate the judgment.

Plaintiff should be entitled to a direction to the circuit court to vacate the order and reinstate the judgment. Plaintiff should recover costs.

POTTER, J., concurred with WIEST, J.