Acme Equipment Co. v. United Pacific Insurance

169 N.W.2d 684, 17 Mich. App. 459, 1969 Mich. App. LEXIS 1228

• Court: Michigan Court of Appeals
• Decided: May 28, 1969
• Docket: Docket No. 5,189
• Status: Published

Opinion

Y. J. Brennan, J.

On October 23, 1967, plaintiff obtained a default judgment against defendant in the Common Pleas court for the city of Detroit. Defendant filed a motion to set aside the default judgment on November 21,1967, which motion was denied on November 28, 1967.

On December 1, 1967, a motion for rehearing was filed, but was withdrawn January 16, 1968. Defendant filed a motion to reinstate the motion for rehearing on January 26, 1968. On February 9, 1968, the motion to reinstate the motion for rehearing was denied. Defendant filed a claim of appeal on February 27,1968.

An examination of the chronology of this cause reveals that the defendant has failed to preserve its right of appeal. The claim of appeal was not filed as required under the provisions of GCB. 1963, 803.1

* Defendant failed to file its claim of appeal within 20 days after denial of the motion to set aside the default judgment or within 20 days after the entry of an order denying a motion for rehearing made within 20 days after the denial of the motion to set aside.

Had defendant pursued its motion for rehearing filed on December 1 and had it been denied, 20 days would have remained from the date of the denial to perfect an appeal. The motion for rehearing was withdrawn however. The subsequent efforts of defendant to reinstate its motion for rehearing indicate a vain effort to revive its right to appeal. The right of appeal cannot be restored in this fashion.

This appeal is to be distinguished from that in Hartman v. Roberts-Walby Enterprises, Inc. (1968), 380, Mich 105. There the claim of appeal was based on an order denying a motion for rehearing, which motion was filed within 20 days after denial of a motion to set aside a default judgment. The jurisdictional time for filing the claim of appeal was governed by the formal entry of the order by the circuit court, and the appeal was filed within that time.

In view of defendant’s failure to comply with GrCR 1963, 803.1, this appeal is hereby dismissed.

Costs to plaintiff.

All concurred.

GCR. 1963, 803.1 provides:

“Appeal, to the Court of Appeals as of right in eivil eases, shall he taken not later than 20 days after the entry of the judgment or order appealed from, or within 20 days after the entry of an order denying a motion for a now trial or rehearing, provided such motion is made and served (a) within 20 days after entry of the judgment or order appealed from. * * *”