A & K Restaurants, Inc v. Gjoka

Michigan Court of Appeals

A & K Restaurants, Inc v. Gjoka

324 N.W.2d 532, 118 Mich. App. 59

CourtMichigan Court of Appeals

DecidedJuly 13, 1982

DocketDocket 57985

StatusPublished

Cited by2 cases

This text of 324 N.W.2d 532 (A & K Restaurants, Inc v. Gjoka) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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A & K Restaurants, Inc v. Gjoka, 324 N.W.2d 532, 118 Mich. App. 59 (Mich. Ct. App. 1982).

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Per Curiam.

On May 8, 1980, plaintiff commenced this action for breach of a purchase agreement and copies of a summons and complaint were served upon defendant Vata Gjoka. When no responsive pleadings were filed, a default judgment against defendants was entered. Defendants moved [61]*61to set aside the default with supporting affidavits, but their motion was denied. Defendants appeal as of right, GCR 1963, 806.1.

On appeal, defendants argue that the trial court erred when it refused to set aside the default judgment. GCR 1963, 520.4 allows a trial court to. set aside a default judgment where defendant makes a showing of good cause and an affidavit of facts showing a meritorious defense is filed. The decision as to whether a default judgment should be set aside is discretionary and will not be reversed unless a clear abuse of discretion is shown. Borovoy v Bursar Realty Corp, 86 Mich App 732, 737; 273 NW2d 545 (1978), lv den 406 Mich 924 (1979). Good cause for setting aside a default judgment is showp when manifest injustice would result from permitting the default to stand. H & L Heating Co v Bryn Mawr Apartments of Ypsilanti, Ltd, 97 Mich App 496, 505; 296 NW2d 354 (1980).

While we agree with the dissent that defendants should have known an action was commenced against them, we disagree that the trial court did not abuse its discretion when it failed to set aside the default judgment. In the affidavit annexed to the brief in support of the motion to set aside the default judgment, defendants claimed that the machines had been returned to their rightful owners, A & M International Leasing Corp.; that defendants had informed plaintiff’s principal of that fact and that plaintiff’s principal "indicated that the matter was resolved”; and that defendants had no further liability thereon.

Furthermore, plaintiff’s attorney, at oral arguments before this Court, conceded that it did not have to make payments on the leased machines to the rightful owners of the machines. Since plaintiff did not have to pay for the machines, we find that [62]*62it would be manifestly unjust to allow the default judgment to stand.

We reverse the trial court’s denial of the motion to set aside the default judgment and remand for entry of an order granting said motion.

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Per Curiam.

On May 8, 1980, plaintiff commenced this action for breach of a purchase agreement and copies of a summons and complaint were served upon defendant Vata Gjoka. When no responsive pleadings were filed, a default judgment against defendants was entered. Defendants moved [61]*61to set aside the default with supporting affidavits, but their motion was denied. Defendants appeal as of right, GCR 1963, 806.1.

On appeal, defendants argue that the trial court erred when it refused to set aside the default judgment. GCR 1963, 520.4 allows a trial court to. set aside a default judgment where defendant makes a showing of good cause and an affidavit of facts showing a meritorious defense is filed. The decision as to whether a default judgment should be set aside is discretionary and will not be reversed unless a clear abuse of discretion is shown. Borovoy v Bursar Realty Corp, 86 Mich App 732, 737; 273 NW2d 545 (1978), lv den 406 Mich 924 (1979). Good cause for setting aside a default judgment is showp when manifest injustice would result from permitting the default to stand. H & L Heating Co v Bryn Mawr Apartments of Ypsilanti, Ltd, 97 Mich App 496, 505; 296 NW2d 354 (1980).

While we agree with the dissent that defendants should have known an action was commenced against them, we disagree that the trial court did not abuse its discretion when it failed to set aside the default judgment. In the affidavit annexed to the brief in support of the motion to set aside the default judgment, defendants claimed that the machines had been returned to their rightful owners, A & M International Leasing Corp.; that defendants had informed plaintiff’s principal of that fact and that plaintiff’s principal "indicated that the matter was resolved”; and that defendants had no further liability thereon.

Furthermore, plaintiff’s attorney, at oral arguments before this Court, conceded that it did not have to make payments on the leased machines to the rightful owners of the machines. Since plaintiff did not have to pay for the machines, we find that [62]*62it would be manifestly unjust to allow the default judgment to stand.

We reverse the trial court’s denial of the motion to set aside the default judgment and remand for entry of an order granting said motion.

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324 N.W.2d 532, 118 Mich. App. 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-k-restaurants-inc-v-gjoka-michctapp-1982.

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