220 Mich. 120 | Mich. | 1922
February 8, 1918, plaintiff instituted suit in the Wayne, circuit court against the Detroit Taxicab & Transfer Company. The case was placed on the calendar of the September, 1920, term of the court as a case in which no progress had been made for more than one year. The calendar was not mailed plaintiff or his attorney and neither had notice that the case had been placed on this portion of the calendar. August 18, 1921, the case was dismissed, the call and consideration of the “no progress” cases
We shall not consider the point here made by defendant’s counsel that the order of dismissal was made by a different circuit judge than the one who heard the motion under consideration. That point was not made in the court below and was in no way made the basis of the order here reviewed. Certain papers were filed in the original suit in the Wayne circuit during the year preceding the order of dismissal. It is argued pro and con whether the filing of these papers constitutes “progress” within the meaning of the statute. We shall likewise disregard this question as we are persuaded that the case should be disposed of on the main question whether the court had jurisdiction to enter the order of dismissal.
Act No. 31, Pub. Acts 1903, applied by its terms to Wayne county alone and provided for the filing of a request with the clerk to place cases ready for trial on a list to be prepared by him, for the monthly printing of lists of cases sufficient to keep the court busy for one month. Since the enactment of this act the printing of a general term calendar has been dispensed with in the Wayne circuit. The validity of this act was sustained in Fornia v. Wayne Circuit Judge, 140 Mich. 631, and it was held to regulate the practices and procedure as to notices of trial and the making up of the docket of cases in that circuit in Hoock v. Sloman, 145 Mich. 19, and Weber v. Wayne Circuit Judge, 162 Mich. 32. Its provisions were substantially re-enacted in Act No. 240, Pub. Acts 1909, and made applicable to counties having a population of 200,000
“All causes in which no action has been taken or progress made for more than one year unless by reason of the business of the court the same shall not have been reached, shall be placed upon said calendar separate and apart from all other causes, under the following heading: ‘Causes in which no progress has been made for more than one year;’ and on the first day of each term, any cause appearing under this' heading shall be dismissed by the court for want of prosecution, but without prejudice, at the cost of the party by whom it was brought into court, unless cause be then and there shown to the contrary.”
And section 4 of the same chapter (§ 12576) provides :
“The clerk shall cause printed copies of said calendar to be provided at least five days prior to the first day of each term of court, and shall mail or deliver a copy of said calendar to each attorney, or firm of attorneys, representing any party in any action or proceeding that is upon the calendar.”
In furtherance of this legislation this court adopted Circuit Court Rule No. 40 which so far as here applicable provides:
“Previous to each term, the clerk shall prepare a calendar of causes for the term. The same shall be made up in the■ following order: 1. Criminal cases. 2. Jury civil cases. 3. Non-jury civil cases. 4. Chancery cases. 5. Causes in which no progress has been made for more than one year. The latter shall appear under no other heading.” * * *
The writ will issue, with costs.