Northrup v. Jay

247 N.W. 717 | Mich. | 1933

On December 16, 1927, plaintiff brought replevin, and certain household furniture was taken on the writ. On December 22, 1927, defendant Jay executed a redelivery bond (3 Comp. Laws 1929, § 14823), with defendant Detroit Fidelity Surety Company as surety. Declaration and plea were filed during the same month.

On February 3, 1930, the cause was dismissed without prejudice as one in which no progress had been made for more than one year. 3 Comp. Laws 1929, § 14253.

On November 21, 1931, plaintiff made motion to reinstate the cause, alleging inadvertence, and appealing to the grace of the court. A stipulation for reinstatement signed by counsel for plaintiff and counsel for defendants in the trial court (not present counsel) was filed. On and because of the stipulation the cause was reinstated.

In the period between dismissal and reinstatement, the surety, treating the matter as terminated, surrendered to its principal, defendant Jay, the collateral security it had taken when becoming surety. The trial court refused judgment against the surety. Plaintiff has appealed.

The dismissal of the cause "terminated all proceedings therein." Miller v. Davis, 241 Mich. 544; 18 C. J. p. 1207. "A dismissal without prejudice leaves the parties as if no action had been instituted." 8 Words and Phrases (1st Ser.), p. 7508, citing Taylor v. Slater, 21 R.I. 104 (41 A. 1001);Scheinman v. Baker, 250 Mich. 668; 54 C. J. p. 639.

Hence the surety here is discharged.

But plaintiff argues that the dismissal was without jurisdiction and void. The trial judge who ordered dismissal states that it was granted "in pursuance of the statute governing dismissal of 'no progress' cases," and in pursuance of a local court rule. Plaintiff recognized the dismissal as valid when petitioning for reinstatement. In any event, on this record, we are in accord with the following by the trial judge:

"You haven't established there was a lack of jurisdiction. There is no showing here there was no rule under which the case could be properly dismissed and I don't think I will trouble with this case any longer. * * * I am going to dismiss the case on the theory that the presumption * * * of regularity of action justifies the court in assuming that the case was dismissed in accordance with the rule."

As this disposes of the case, we need not consider the question that plaintiff is estopped, on this record, to ask judgment against the surety by reason of delay of nearly 21 months in seeking reinstatement; nor need we discuss asserted invalidity in order of reinstatement that signature of then counsel for defendant to the stipulation was unauthorized and made at a time when his client had secured return of his collateral and was not collectible.

Affirmed.

McDONALD, C.J., and POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.