203 Mich. 105 | Mich. | 1918
Mandamus is sought to set aside an order made by the respondent. The petitioner was served with a summons on the 15th day of March, 1915, at the suit, of one Thomas A. Noble. Defendant entered its appearance in said cause by its attorney on the 23d of March, 1915. Nothing further was done in said action until the 14th day of April, 1916, and on that day the default of plaintiff for failure to file his declaration was regularly filed in said cause. Subsequently an order was made by the Wayne circuit court dismissing the cause, under the provisions of section 2, chap. 18, of the judicature act (3 Comp. Laws 1915, § 12574). Nothing further was done in said cause until the 19th day of March, 1918, when the attorney for the plaintiff filed a motion to set aside the order dismissing the case, and asked that
It is the contention of counsel for the relator that the circuit judge clearly ábused any discretion vested in him in setting aside the default taken April 14, 1916, on a motion made March 19, 1918. Our attention is called to section 4 of Circuit Court Rule No. 32, which provides for setting aside defaults taken against the defendant by the plaintiff. The section in question reads as follows:
“Any order entered under this rule may be set aside on special motion for cause shown, in the discretion of the court, on such terms as may be deemed just and proper. In’actions at law, the party desiring to have a default set aside shall, as soon as practicable after he shall know or have reason to believe that the default has been filed, file and serve an affidavit of merits, and make application to the' court to have the defáult set aside. In actions in equity, to entitle a defendant to an order setting aside his default for want of appearance or answer, he shall proffer a sworn answer showing a defense on the merits as to the whole or a part of the plaintiff’s case. In all cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within six months after such default is regularly filed. And, subject to statutory provisions, in any case where personal service shall have been made upon a defendant, an order setting aside his default shall be conditioned upon his payment to the plaintiff of the taxable costs incurred in reliance on said default, and the court may impose such other conditions as shall be deemed proper.”
The writ is denied, with costs.