Battersby v. Lobsinger

Michigan Court of Appeals

Battersby v. Lobsinger

188 N.W.2d 631, 32 Mich. App. 316, 1971 Mich. App. LEXIS 1895

CourtMichigan Court of Appeals

DecidedApril 1, 1971

DocketDocket 9760

StatusPublished

This text of 188 N.W.2d 631 (Battersby v. Lobsinger) 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.

Bluebook

Battersby v. Lobsinger, 188 N.W.2d 631, 32 Mich. App. 316, 1971 Mich. App. LEXIS 1895 (Mich. Ct. App. 1971).

Pincite

Opinion

Per Curiam.

Defendant appeals from the grant of a permanent injunctive order and from the order denying his motion to dismiss. He states the single issue raised on appeal as:

“Is jurisdiction conferred upon a circuit court to issue injunctive relief upon a mere filing of a petition for an injunction, without instituting an action by filing a complaint and a summons being issued?”

April 15, 1970, plaintiff filed an ex parte application for a temporary restraining order with supporting affidavits and a request for an order to show cause why the temporary restraining order should not be made permanent. The same day an order to show cause why the proposed temporary restraining order should not be made permanent was entered. This order called for defendant’s appearance on April 16, 1970, at 2 p.m, to show cause as ordered, and the order was served on defendant April 15, 1970, at about 11:45 a.m.

April 16,1970, a temporary restraining order was entered by consent of the parties, and it required defendant to show cause April 22, 1970, at 2 p.m. why the temporary restraining order should not be made permanent. April 22, 1970, defendant filed a motion to dismiss, supported by his affidavit. Thereafter, the orders appealed from were entered.

The gist of defendant’s argument below and on appeal is that plaintiff commenced no action because he filed no complaint as required by GrCB. 1963, 101. Hence, the trial court acquired no jurisdiction.

*318 Plaintiff contends that he proceeded under GCB 1963, 718, and that it permits commencement by application supported by affidavit. We agree with plaintiff.

A reading of entire rule 718, which is part of a separate chapter of the rules relating to special proceedings, convinces us that the circuit court may entertain jurisdiction of injunctive matters on application supported by affidavit. Especially pertinent is GCB, 1963, 718.2(1):

“Except as otherwise provided by statute or these rules, no preliminary injunctions may be granted until hearing on a motion or order to show cause why a preliminary injunction should not issue. If it clearly appears from specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss or damage, or physical injury will result to the applicant, a restraining order may he issued ex parte pending the hearing on the motion or order to show cause.”

Affirmed with costs to plaintiff.

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Per Curiam.

Defendant appeals from the grant of a permanent injunctive order and from the order denying his motion to dismiss. He states the single issue raised on appeal as:

“Is jurisdiction conferred upon a circuit court to issue injunctive relief upon a mere filing of a petition for an injunction, without instituting an action by filing a complaint and a summons being issued?”

April 15, 1970, plaintiff filed an ex parte application for a temporary restraining order with supporting affidavits and a request for an order to show cause why the temporary restraining order should not be made permanent. The same day an order to show cause why the proposed temporary restraining order should not be made permanent was entered. This order called for defendant’s appearance on April 16, 1970, at 2 p.m, to show cause as ordered, and the order was served on defendant April 15, 1970, at about 11:45 a.m.

April 16,1970, a temporary restraining order was entered by consent of the parties, and it required defendant to show cause April 22, 1970, at 2 p.m. why the temporary restraining order should not be made permanent. April 22, 1970, defendant filed a motion to dismiss, supported by his affidavit. Thereafter, the orders appealed from were entered.

The gist of defendant’s argument below and on appeal is that plaintiff commenced no action because he filed no complaint as required by GrCB. 1963, 101. Hence, the trial court acquired no jurisdiction.

*318 Plaintiff contends that he proceeded under GCB 1963, 718, and that it permits commencement by application supported by affidavit. We agree with plaintiff.

A reading of entire rule 718, which is part of a separate chapter of the rules relating to special proceedings, convinces us that the circuit court may entertain jurisdiction of injunctive matters on application supported by affidavit. Especially pertinent is GCB, 1963, 718.2(1):

“Except as otherwise provided by statute or these rules, no preliminary injunctions may be granted until hearing on a motion or order to show cause why a preliminary injunction should not issue. If it clearly appears from specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss or damage, or physical injury will result to the applicant, a restraining order may he issued ex parte pending the hearing on the motion or order to show cause.”

Affirmed with costs to plaintiff.

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Bluebook (online)

188 N.W.2d 631, 32 Mich. App. 316, 1971 Mich. App. LEXIS 1895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/battersby-v-lobsinger-michctapp-1971.