Hoyne v. Allstate Insurance , 83 Mich. App. 422 ( 1978 )

T. M. Burns, J.

This is an appeal by leave granted to review the circuit court’s action of setting aside a default judgment entered in the Detroit Common Pleas Court. The underlying action involves a claim under an insurance policy issued by defendant on a building under construction. When defendant failed to appear on the adjourned trial date, the common pleas judge entered default judgment for $7,000 plus costs.

The trial in this matter was set for February 25, 1976. On February 17, 1976, the parties filed a written stipulation to adjourn the trial date to March 8, 1976. The defense failed to appear on that date and the judgment noted above was entered.

Defendant’s attorney has alleged in the various motions to set aside the default that he had informed plaintiff’s attorney of a scheduling conflict and was under the impression that the matter would be further adjourned. We note that no motion, required for the second adjournment, was ever filed in the common pleas court. CPR 28, § 2.

Defendant moved to set aside the default on March 24, 1976, 16 days after it was entered. The common pleas judge denied the motion, stating: "Denied, under Rule 19, the same being untimely filed, and appears to be the fault or neglect of defendant.” CPR 19, § 3 then required the motion to be filed within 10 days after the default judgment was entered.

After a substitution of attorneys, defendant moved for rehearing. In the motion the defendant argued that the default judgment should be set aside under GCR 1963, 528.3. The common pleas judge granted rehearing but refused to set aside the default, noting: "Circuit court may have authority under GCR 528.3, but common pleas court does not.”

On appeal to the circuit court, the default was set aside and the matter returned to common pleas for trial. It is not clear from the record, but apparently the circuit court relied upon GCR 1963, 528.3.

The original motion to set aside the judgment was not timely under CPR 19. The problem lies in what procedure must be followed to set aside the default judgment after this original time period had run.

CPR 39 provides: "In all matters not herein provided for, or not expressly prohibited or specified by statute, the Michigan Court Rules shall govern.”

In this case, the matter is "specified by statute”. MCL 728.29; MSA 27.3680 provides in part:

"In any case where default judgment shall have been rendered by any such court against any defendant and the regular time for * * * motion to set aside such default * * * has expired, the judge who rendered such judgment or his successor in office, shall have power to set aside such judgment and grant a new trial on special motion therefor supported by affidavit based upon the personal knowledge of the affiant, setting forth, in substance, the following facts: (a) that such motion is based upon lack of personal service of process upon the judgment debtor; (b) that no delayed appeal from or transcript of such judgment has been taken and no other proceeding, seeking relief therefrom, has been instituted in any other court; (c) that said defaulted party has a good and meritorious defense to the action; and (d) that such motion is filed within 10 days after such judgment debtor had notice or actual knowledge of the existence of such judgment”.

This statute provides the grounds upon which relief may be granted after the time specified in Rule 19 has expired and the procedure to be followed. That the grounds are limited and the time for raising them short is understandable, given the limited jurisdiction and the nature of the court to which it applies.

The defendant has not filed an affidavit containing the. information envisioned by the statute. It has never properly moved to set aside the default.

Even if we were to assume that GCR 1963, 528.3 could have been applied either by the common pleas court or the circuit court sitting as an appellate court, relief would not be justified here.

Generally, the errors of an attorney must be charged against the client. White v Sadler, 350 Mich 511; 87 NW2d 192 (1957). It is difficult to perceive how the attorney could have been "mistaken” about the fact that the trial had not been adjourned where the rules clearly require a motion and a showing of cause before a judge. CPR 28, § 2. There has been no allegation that a motion for adjournment was ever filed or that there was some act by the court which led counsel to believe that the case was further adjourned. Despite the assertion, made now, that defendant is ready and anxious to have the cause heard on the merits, one could conclude from the delays occasioned before the final trial date was set and the delayed efforts to have the judgment set aside, that defendant was more interested in delaying the matter than in having it heard. Defendant is not entitled to relief under the general court rules on the facts of this case. See, Okros v Myslakowski, 67 Mich App 397; 241 NW2d 223 (1976), lv den, 397 Mich 861 (1976).

The circuit court erred in setting aside the default on this record.

Reversed and default reinstated. Costs to appellant.

R. M. Maher, J., concurred.