Ford Motor Co. v. Jackson , 47 Mich. App. 700 ( 1973 )

47 Mich. App. 700 (1973) 209 N.W.2d 794

FORD MOTOR COMPANY
v.
JACKSON

Docket Nos. 13111-13116.

Michigan Court of Appeals.

Decided June 25, 1973.

Wright Tisdale and Joseph A. O'Reilly (Richard A. Fellrath, of counsel), for Ford Motor Company.

Stephen I. Schlossberg, John A. Fillion, and Jordan Rossen, for claimants.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Felix E. League, Assistant Attorney General, for the Michigan Employment Security Commission.

Before: V.J. BRENNAN, P.J., and HOLBROOK and VAN VALKENBURG,^[*] JJ.

Leave to appeal granted as to certain claims, and others held in abeyance, 390 Mich 781.

V.J. BRENNAN, P.J.

On January 26, 1970, the Michigan Employment Security Commission held that defendants (hereinafter referred to as "employees") were entitled to "back-to-work" payments pursuant to MCLA 421.27(c)(2); MSA 17.529(c)(2). On January 27, 1970, employees filed a claim of appeal from this decision in the Wayne County Circuit Court (hereinafter referred to as the "Wayne case"). On February 6, 1970, plaintiff (Ford) filed a claim of appeal from the same decision of the Michigan Employment Security Commission in the circuit court for Ingham County. This later case (which involves precisely the same parties as the "Wayne case") is the one under consideration here, and shall be referred to as the "Ingham case".

Also on February 6, 1970, Ford moved to dismiss the Wayne County case. That motion was granted on August 30, 1971. The dismissal of the Wayne case was recently affirmed by this Court in an unpublished per curiam opinion. Alvarado v Ford Motor Co (Docket Nos. 12605, 12614, decided March 1, 1973 [unreported]). This Court upheld the dismissal of the Wayne case on the grounds that the employees were either not aggrieved by the decision of the MESC, or were not residents of Wayne County.

On February 4, 1971, employees' motion to dismiss the instant case was denied by the Ingham County Circuit Court. The motion was based on the pendency of the Wayne case and GCR 1963, 116.1(4). The Ingham court then proceeded to reach the merits and held for Ford. Final judgment therein was rendered on November 19, 1971. The employees appeal and first argue that the Ingham County Circuit Court erred by failing to dismiss the instant suit.

We agree with the employees. The court rule provides:

"In a party's first responsive pleading, or by motion filed not later than his first responsive pleading, a party may demand that service of process be quashed or that judgment be entered dismissing 1 or more claims asserted against him upon any of the following grounds:

* * *

"(4) another action is pending between the same parties involving the same claim, * * *." GCR 1963, 116.1.

The dispositive question here is the meaning of the term "pending". At the time of the filing of the Ingham County suit, the Wayne County suit was, and has been at all times up to and including the present, "pending". It was "pending" after it had been dismissed by the Wayne County Circuit Court because it was still subject to review in this Court. It is still pending, despite the decision of this Court, since it may yet be appealed to the Supreme Court. See Bisceglia Motor Sales, Inc v Studebaker-Packard Corp, 367 Mich 472 (1962).

The court below is reversed, and the case is dismissed.

Reversed and dismissed. Costs to defendants-appellants.

All concurred.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.