157 Mich. 43 | Mich. | 1909
The plaintiffs began their action by summons tested June 15, and returnable July 10, 1908. It was personally served on June 15, and returned June 16, 1908. Declaration was filed on June 22, 1908. On July 1, 1908, defendant’s default for non-appearance was entered, upon filing of the usual affidavit. On July 3, 1908, damages were assessed before the court at $4,531, including some interest. All of these proceedings occurred at the April term of court. On July 16th a motion to set aside the default and judgment and to grant the de
If the opinion filed can be fairly called a filing of reasons for denying the defendant’s motion, which we do not intend to imply, it justified the inference that the learned circuit judge was not satisfied with defendant’s excuse for not appearing in the cause, but that, in view of some negotiations had at one time between the parties wherein there was an offer to accept $2,500 in settlement of the claim, he determined to grant the motion unless plaintiffs should reduce their judgment by remission to $2,500. Counsel for defendant contend that they are not here under the statute authorizing a review of denials of motions for new trial on error. If that is so, the only question is whether the court erred in his refusal to set aside the default. On this record it is reviewable on error. Had he made an unqualified denial of that motion, we should see no reason for interfering, as it was a matter of discretion. The court saw fit, however, to grant the motion conditionally, and it is of the condition that defendant complains.
We are of the opinion that he was not injured by the condition. Aside from any technical view, however, we are impressed that the circuit judge was satisfied, from the merits set forth in the affidavits for which defendant is responsible, that defendant’s affidavit of merits had no
We find no error in this record, and the judgment is affirmed.