Kentucky Wagon Manfg. Co. v. Kalamazoo Circuit Judge

208 Mich. 267 | Mich. | 1919

Fellows, J.

(after stating the facts). The findings of fact made by the circuit judge are supported by testimony taken upon the hearing of the motion. His return to the order to show cause has not been traversed by any pleading filed in this court. We are pointed to no practice which would permit us, upon this state of the pleadings, to try out again the facts found and returned by the circuit judge to be the facts in the case. Under repeated decisions of this court the return of the circuit judge unless traversed must be taken as true.

Circuit Court Rule No. 32, § 4, so far as important here, provides:

“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.”

This court has not infrequently been required to enforce the provisions of this rule: Petley v. Wayne Circuit Judge, 124 Mich. 14; Burgard v. Burgard, 175 Mich. 565; St. Louis Hoop & Stave Co. v. Wayne Circuit Judge, 155 Mich. 311; Carpenter v. Judge of Surperior Court, 126 Mich. 8; Biensteadt v. Clinton Circuit Judge, 142 Mich. 633; Caille Bros. Co. v. Saginaw Circuit Judge, 155 Mich. 480; Cook v. Wayne Circuit Judge, 197 Mich. 19. This court has also held that the limitation of the rule does not apply where the default is not regularly entered. Turner v. Ottawa Circuit Judge, 123 Mich. 617; or the proceedings taken on the strength thereof were not valid proceedings. W. H. Warner Coal Co. v. Nelson, 204 Mich. 317.

We therefore come to the single controlling question in the case: Was the service of a copy of the rule to plead, instead of a notice thereof, such a defect in those proceedings as we may say that the default was not regularly entered and thus toll the rule? We are persuaded that this question must be answered in the negative. A copy of the rule gave the defendant the same information that a notice of it would. The purpose of the notice is that knowledge, information of the filing of the rule, shall be given the defendant in order that he may know that he is required to plead within 15 days. A copy of the rule certainly is as efficient for this purpose as notice of it would be. In the recent case of In re Joseph, 206 Mich. 659, we held that the attachment of the notice of the rule to plead to the declaration instead of writing it on the back of the document did not vitiate the service and proceedings. Upon principle we think that case should control here. There the defendant was served with notice of the rule to plead but it was not written on the back of the declaration; here the defendant was given notice of the rule to plead by receiving a copy of the rule itself instead of a notice thereof. , In both cases there was a substantial compliance with the. statute. This was not such a defect in the service as would justify us in holding that the default was not regularly entered.

The writ will issue.

Bird, C. J., and Sharpe, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.