Sayre v. Detroit, Grand Haven & Milwaukee Railway Co., 199 Mich. 414

Sayre v. Detroit, Grand Haven & Milwaukee Railway Co.

199 Mich. 414 | Mich. | 1917

Ostrander, J.

(after stating the facts). The “state- . *420ment of facts” in appellant’s brief, with a single and unimportant exception, refers to no page of the record. The printed record does not show when pleadings and papers were filed. The effect of this disregard of two of the rules of this court and the general state of the record have much increased the labors of the court.

The order dismissing the suit is in form absolute, and, if allowed to stand, disposes of the cause. Counsel for defendant, appellee, does not point out the statute or rule of practice pursuant to which it made its motion to dismiss or any authority which sustains the action of the court. The motion raises no question heretofore raised by plea or demurrer. See section 4, chap. 14, judicature act (3 Comp. Laws 1915, § 12456); Pagenkoff v. Insurance. Co., 197 Mich. 166 (163 N. W. 1000). When the motion was made, the issue had stood untried for 20 years. The cause had been revived in the name of the personal representative of the’ deceased plaintiff. The jurisdiction of the court must be admitted, the declaration is not attacked, the cause of action survived the death of plaintiff, and it is not perceived how at this time a plea in abatement could be, under the old practice, interposed.

Sections 10252, 10253, 3 Comp. Laws, under which judgment for a defendant, as in case of nonsuit, may be rendered in case of neglect of a plaintiff to bring an issue of fact to trial, are repealed by the judicature act. See, as affecting the application of these sections, Abe Stein Co. v. Wood, 151 Mich. 657 (115 N. W. 1046); Heintzen v. Gault, 174 Mich. 56 (140 N. W. 520), which hold that something more than mere failure of plaintiff to notice a cause for trial must be shown before a nonsuit can be entered.

It is evident that the legislature intended the provisions of sections 2 and 3 of chapter 18 of the judicature act (3 Comp. Laws 1915, §§ 12574, 12575) to *421take the place of 8 Comp. Laws, §§ 10252, 10253. Section 2 provides that causes in which no action has been taken or progress made for more than one year, unless by reason of the business of the court the same' shall not have been reached, shall be placed on the calendar as such causes by the clerk of the court, and shall be dismissed by the court for want of prosecution, but without prejudice, at the cost of the party by whom they were brought into court, unless cause be then and there shown to the contrary. The succeeding section provides that, if further time for the trial of the issue is allowed by the court, and the plaintiff shall neglect to try the same within the time so allowed, the court shall dismiss the action as above provided. Assuming the validity of these provisions, and their validity is not questioned, it is under them and any rules of practice affecting the subject treated by them that parties must now move in the aid of or against the retention in court of suits in which progress has not been made.

But defendant, appellee, is not, in form, proceeding under these provisions, and it does not invoke any general, inherent authority of the court to dismiss a cause at issue upon the motion of a defendant. Many cases may be, some are, cited in support of the proposition that a court may deny a continuance or other discretionary relief asked for by a plaintiff guilty of laches, and that a court of equity may refuse to revive and continue an action interrupted or abated by the death of a party after delays and laches which have placed the defendant at disadvantage. And the refusal of courts to enforce stale demands is not necessarily dependent upon a statutory limitation. But when the motion of defendant was made in the case at bar, it stood in form upon the records of the court at issue, ready for trial. A notice from either party would have placed it upon the trial docket. This was *422the situation whether we do or do not assume that the orders made by Judge Miner were void. If they were void, and it must be agreed that they were, no qualified judge had exercised discretion to dismiss or not to dismiss under the provisions of section 2, chap. 18, of the judicature act (3 Comp. Laws 1915, § 12574). No authority is cited in support of the proposition that the court then had any general or special power, upon the motion of defendant, a motion based in part upon an affidavit stating the alleged disadvantage in which defendant was placed, to dismiss the cause. I have considered and rejected the suggestion that the motion to dismiss and the opposition thereto may together be treated here as the equivalent of showing cause, under the act, why the action should not be dismissed. The suggestion came from the language of the opinion of Judge Searl; the recitals in the judgment entry, and the state of the record, generally, require the conclusion. Appellant is entitled to treat the judgment as a final judgment entered upon the motion of the defendant in a cause apparently at issue and ready for trial, upon the notice of either party. In my opinion, the court was without authority to render the judgment. Assuming that it had authority and that the question of judicial discretion and its abuse is before us, no default of plaintiff except failure to bring the cause on for trial is involved, for which defendant at all times had a remedy by itself bringing the cause on for trial.

Other questions raised by the motion are open upon a trial, since plaintiff must maintain the issue he tenders.

The judgment is reversed, with costs to appellant.

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