Plaintiffs, members of the Roseville police force took a promotional examination for the position of sergeant in the department. They failed to pass the examination and brought suit to determine thаt the examination as given was illegal as not conforming to the requirements of the civil service act * аnd asked that promotions based on that examination be permanently enjoined.
The plaintiffs assert the examination was faulty in the following particulars :
(1) The notice required by the act was not given.
(2) The accommodations for the examination werе not suitable as required by the act.
(3) The scope of the examination was too broad in violation оf the act’s requirements.
(4) The secrecy provisions of a civil service commission resolution were not observed.
They assert that when they petitioned the civil service commission for a new examination based on these complaints, the commission ignored their request and certified the results of the examinatiоn.
*242 The defendants denied that the notice required was not given; denied the accommodations were unsuitable; and denied the scope was improper.
They further maintained that these matters were all within the discretion of the civil service commission and were not reviewable by the court in a suit for a declarаtion of rights.
Accordingly they moved for accelerated judgment under G-CR 1963, 116 on the basis that the circuit court laсked jurisdiction over the subject matter, and for summary judgment under GCR 1963, 117 on the basis that the plaintiffs failed to state a сlaim upon which the relief sought could be granted.
The court elected to treat the suit “in the nature of superintending control” and on the pleadings, depositions, and answers to interrogatories, resolved the fаctual issues in favor of the defendants, and summarily dismissed the plaintiffs’ complaint.
On appeal the apрellants claim the court should not have resolved disputed factual issues without an evidentiary hearing.
The аppellees assert the court was correct in doing so because of the following stipulation of the parties :
“It is hereby stipulated by and between the parties herein through their respective counsеl, that the court in considering the defendants’ motion for accelerated judgment may have recoursе to all of the pleadings, interrogatories and depositions presently on file with the court and may cоnsider all of the above in making their [sic] determination as to whether the plaintiffs have stated their cause of action.”
It has not been disputed that, as plaintiffs contend, they attempted unsuccessfully to have а hearing on their complaints before the civil service commission. The failure to have such a hearing cannot be charged to plaintiffs.
*243
Since there was no hearing before the civil service commission, the trial judge erred in treating plaintiffs’ plenary suit as one for superintending control. Superintending control replaces certiorari (GCR 1963, 711.3) but the scope of review thereon has not changed.
Indian Village Manor Company
v.
City of Detroit
(1967),
Plaintiffs brought a plenary suit and were entitled to an evidentiary hearing thereon. However, a hearing was not conducted, and the trial judge disposed of the case by dismissing the suit. The order of dismissal did not state whether it was by way of accelerated or summary judgment. In his written oрinion the court alluded to deficiencies in the statement of claims in the complaint and in the proоfs. "We do not think the order of dismissal should have been entered.
The stipulation that in considering defendants’ motiоn for accelerated judgment the court could have recourse to the pleadings, answers to intеrrogatories and depositions in determining whether plaintiffs have stated their cause of action is evidence of the confusion of the purpose of the two rules (G-CR 1963, 116 and 117).
Whether plaintiffs have stated a clаim is not material to a motion for accelerated judgment (GfCR 1963, 116). A motion under rule 116 is the means of testing certаin defenses (e. g. lack of jurisdiction of the subject matter) which may defeat a complaint even if it properly states a claim. The defense that the complaint fails to state a claim must be asserted *244 by motiоn for summary judgment under GCR 1963, 117 and may not be made, by motion for accelerated judgment under G-CR 1963,116.
The stipulation conсerns only the motion for accelerated judgment, and not the motion for summary judgment, even though it mistakenly assumеs that a motion for accelerated judgment can test whether a claim has been stated in the cоmplaint. The plaintiffs did not stipulate that their pleadings and answers to interrogatories could be considered on the motion for summary judgment, which sought to test whether a claim had been stated. Interrogatories and dеpositions are relevant only if the ground stated for summary judgment is that there is no genuine issue of material faсt' — not if it is asserted that the pleading fails to state a claim or defense.
Reversed and remanded. No costs, a public question being involved.
Notes
CL 1948, § 38.501 et seq., as amended (Stat Ann 1958 Rev § 5-.3351 et seq., as amended).