Hoyne v. Allstate Insurance
Hoyne v. Allstate Insurance
Opinion of the Court
This is an appeal by leave granted to review the circuit court’s action of setting aside a default judgment entered in the Detroit Common Pleas Court. The underlying action involves a claim under an insurance policy issued by defendant on a building under construction. When defendant failed to appear on the adjourned trial date, the common pleas judge entered default judgment for $7,000 plus costs.
The trial in this matter was set for February 25, 1976. On February 17, 1976, the parties filed a written stipulation to adjourn the trial date to March 8, 1976. The defense failed to appear on that date and the judgment noted above was entered.
Defendant’s attorney has alleged in the various motions to set aside the default that he had informed plaintiff’s attorney of a scheduling conflict and was under the impression that the matter would be further adjourned. We note that no
Defendant moved to set aside the default on March 24, 1976, 16 days after it was entered. The common pleas judge denied the motion, stating: "Denied, under Rule 19, the same being untimely filed, and appears to be the fault or neglect of defendant.” CPR 19, § 3 then required the motion to be filed within 10 days after the default judgment was entered.
After a substitution of attorneys, defendant moved for rehearing. In the motion the defendant argued that the default judgment should be set aside under GCR 1963, 528.3. The common pleas judge granted rehearing but refused to set aside the default, noting: "Circuit court may have authority under GCR 528.3, but common pleas court does not.”
On appeal to the circuit court, the default was set aside and the matter returned to common pleas for trial. It is not clear from the record, but apparently the circuit court relied upon GCR 1963, 528.3.
The original motion to set aside the judgment was not timely under CPR 19. The problem lies in what procedure must be followed to set aside the default judgment after this original time period had run.
CPR 39 provides: "In all matters not herein provided for, or not expressly prohibited or specified by statute, the Michigan Court Rules shall govern.”
In this case, the matter is "specified by statute”. MCL 728.29; MSA 27.3680 provides in part:
"In any case where default judgment shall have been rendered by any such court against any defendant and*426 the regular time for * * * motion to set aside such default * * * has expired, the judge who rendered such judgment or his successor in office, shall have power to set aside such judgment and grant a new trial on special motion therefor supported by affidavit based upon the personal knowledge of the affiant, setting forth, in substance, the following facts: (a) that such motion is based upon lack of personal service of process upon the judgment debtor; (b) that no delayed appeal from or transcript of such judgment has been taken and no other proceeding, seeking relief therefrom, has been instituted in any other court; (c) that said defaulted party has a good and meritorious defense to the action; and (d) that such motion is filed within 10 days after such judgment debtor had notice or actual knowledge of the existence of such judgment”.
This statute provides the grounds upon which relief may be granted after the time specified in Rule 19 has expired and the procedure to be followed. That the grounds are limited and the time for raising them short is understandable, given the limited jurisdiction and the nature of the court to which it applies.
The defendant has not filed an affidavit containing the. information envisioned by the statute. It has never properly moved to set aside the default.
Even if we were to assume that GCR 1963, 528.3 could have been applied either by the common pleas court or the circuit court sitting as an appellate court, relief would not be justified here.
Generally, the errors of an attorney must be charged against the client. White v Sadler, 350 Mich 511; 87 NW2d 192 (1957). It is difficult to perceive how the attorney could have been "mistaken” about the fact that the trial had not been adjourned where the rules clearly require a motion and a showing of cause before a judge. CPR 28, § 2. There has been no allegation that a motion
The circuit court erred in setting aside the default on this record.
Reversed and default reinstated. Costs to appellant.
Concurring Opinion
(concurring). I concur in the result reached by Judge Burns and write to address two issues. The first is the motion practice mentioned in the majority opinion regarding adjournments.
CPR 28, § 2 was for many years, to my certain knowledge, honored in the breach rather than in the adherence. I would be reluctant to ground any decision on failure to follow the procedure outlined in CPR 28, § 2. What persuades me to join in the majority is the unrebutted docket entry to the effect that defense counsel was notified by the common pleas court clerk of entry of default judgment by notice mailed March 9, 1976, which informed him to appear within 10 days if he wished to set aside the default. This he ignored at his peril. We have absolutely no clue as to Judge Martin’s reason for reversing the common pleas
I would not hold that the attorney error was in failing to appear for motion and order to show cause before a judge of the common pleas court under CPR 28, §2 just because it was a second adjournment. I would reverse on the narrow ground that the common pleas court did not err in refusing to set aside the default and that the circuit court did err in granting appellate relief without giving any reasonable ground therefor where the proceedings in the common pleas court were regular and the docket shows noncompliance with CPR 19. Whether a circuit judge could exercise discretion under GCR 1963, 528.3 in an appellate role where a lower court judge did not have such discretion I consider dubious but would leave that determination to another date. I would hold however that CPR 39 does not invoke GCR 1963, 528.3 to invest the common pleas court with the broad jurisdiction outlined in GCR 1963, 528.3 as to default judgments.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.