Northview Construction Co. v. City of St. Clair Shores , 12 Mich. App. 104 ( 1968 )

12 Mich. App. 104 (1968) 162 N.W.2d 297

NORTHVIEW CONSTRUCTION COMPANY
v.
CITY OF ST. CLAIR SHORES.

Docket No. 3,599.

Michigan Court of Appeals.

Decided June 26, 1968. Leave to appeal denied September 4, 1968.

Honigman, Miller, Schwartz & Cohn (Norman Hyman, of counsel), for plaintiff.

Yoe, Casey & Moore (Robert M. Fraser, of counsel), for defendant.

Leave to appeal denied September 4, 1968. See 381 Mich 773.

QUINN, P.J.

July 27, 1960, plaintiffs filed their complaint in chancery individually and as a class action under Court Rule No 16 (1945)^[1] to recover fees paid to defendant for building permits as required by an ordinance of defendant, which was held invalid in Merrelli v. City of St. Clair Shores (1959), 355 Mich 575. Defendants answered and plaintiffs replied. Thereafter, by stipulation, the cause was adjourned from time to time and ultimately until final decision of Beachlawn Building Corporation v. City of St. Clair Shores (1963), 370 Mich 128, and (1965), 376 Mich 261. November 17, 1965, defendant filed motion for summary judgment under GCR 1963, 117.2(1) as to the class action, and this motion was granted by order of April 3, 1967. Plaintiffs appeal.

The allegations of plaintiffs' complaint are sufficient to constitute it a class action under Court Rule No 16, § 1 (c) (1945),^[2] but the record does not contain proof of service of adequate notice on the members of the class, and no binding relief for or against members of the class can possibly be granted on the present record nor can a determination be made of the adequacy of the representation.

In granting summary judgment, the trial court relied on the inadequacy of notice and the court's finding that it was not shown that the class was so numerous as to make it impractical to bring all the class before the court. We believe the trial court was in error on both grounds. The inadequacy of notice can be cured by an appropriate order under GCR 1963, 208.4, and the response to such an order by members of the class will be dispositive of the issues of adequacy of representation and the practicality of bringing all members of the class before the court.

For the guidance of the trial court in making its order under GCR 1963, 208.4, it is suggested that the actions of the parties have precluded either from raising the statute of limitations; that in determining which party shall have the burden of serving the above order on the members of the class, consideration be given to the fact that the information from which adequate notice could have been had in the first instance was and remains available to plaintiffs, and that a court of equity having acquired jurisdiction, retains it for complete relief. Sternberg v. Baxter (1964), 373 Mich 8, especially the quotation from Brown v. Kalamazoo Circuit Judge (1889), 75 Mich 274, 280, found at the top of page 19 of Sternberg.

Reversed and remanded for entry of an appropriate order under GCR 1963, 208.4 and for such further proceedings as may be required.

T.G. KAVANAGH and CORKIN, JJ., concurred.

NOTES

[1] Presently GCR 1963, 208.

[2] Presently GCR 1963, 208.1(3).