Bednarsh v. Winshall

Michigan Supreme Court

Bednarsh v. Winshall

110 N.W.2d 729, 364 Mich. 113, 1961 Mich. LEXIS 356

CourtMichigan Supreme Court

DecidedSeptember 22, 1961

DocketDocket 50, Calendar 48,203

StatusPublished

Cited by10 cases

This text of 110 N.W.2d 729 (Bednarsh v. Winshall) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bednarsh v. Winshall, 110 N.W.2d 729, 364 Mich. 113, 1961 Mich. LEXIS 356 (Mich. 1961).

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Opinion

Dethmers, C. J.

Defendant appeals from denial of his motion to set aside a default judgment against him in the amount of $11,385.

The judgment was based on a claim for money due in assumpsit. The motion was supported by an affidavit of merits alleging payment, with canceled •checks attached as supporting evidence. We think *114 a good showing of a meritorious defense was made,, if the affidavit be true. Counteraffidavits were filed to the effect that the payments to plaintiff were not from defendant and were on another account. A serious question of fact was thus presented as to-whether defendant did or did not owe plaintiff the amount for which judgment was taken or any part of it.

The showing made in connection with the motion was that defendant was served with summons and' declaration. He took them to his attorney. Because the latter had also represented plaintiff he decided to turn them over to another lawyer. This resulted in some confusion as to conducting the defense. The-matter came into the hands of defendant’s present attorney 1 day after the default judgment had been entered on January 26, 1959. Order of default had been filed on January 14, 1959. Proof of service of' summons on defendant was filed on December 22, 1958, just 3 weeks before the order of default and 1 month before default judgment. The motion to set-aside the default was filed January 29, 1959, within 15 days after default and 3 days after judgment. We-think defendant acted with reasonable care and dispatch, that the minor delay on the part of the defense-resulted from confusion in the changing of attorneys and that this was seized upon with undue haste by-plaintiff.

In view of the plaintiff’s precipitate action, defendant’s prompt motion to set aside default and the affidavit of merits showing a meritorious defense, we-think it was an abuse of discretion to deny the motion to set aside the default and judgment.

Reversed and remanded for further requisite proceedings. Costs to defendant.

Carr, Kelly, Talbot Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred.

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Dethmers, C. J.

Defendant appeals from denial of his motion to set aside a default judgment against him in the amount of $11,385.

The judgment was based on a claim for money due in assumpsit. The motion was supported by an affidavit of merits alleging payment, with canceled •checks attached as supporting evidence. We think *114 a good showing of a meritorious defense was made,, if the affidavit be true. Counteraffidavits were filed to the effect that the payments to plaintiff were not from defendant and were on another account. A serious question of fact was thus presented as to-whether defendant did or did not owe plaintiff the amount for which judgment was taken or any part of it.

The showing made in connection with the motion was that defendant was served with summons and' declaration. He took them to his attorney. Because the latter had also represented plaintiff he decided to turn them over to another lawyer. This resulted in some confusion as to conducting the defense. The-matter came into the hands of defendant’s present attorney 1 day after the default judgment had been entered on January 26, 1959. Order of default had been filed on January 14, 1959. Proof of service of' summons on defendant was filed on December 22, 1958, just 3 weeks before the order of default and 1 month before default judgment. The motion to set-aside the default was filed January 29, 1959, within 15 days after default and 3 days after judgment. We-think defendant acted with reasonable care and dispatch, that the minor delay on the part of the defense-resulted from confusion in the changing of attorneys and that this was seized upon with undue haste by-plaintiff.

In view of the plaintiff’s precipitate action, defendant’s prompt motion to set aside default and the affidavit of merits showing a meritorious defense, we-think it was an abuse of discretion to deny the motion to set aside the default and judgment.

Reversed and remanded for further requisite proceedings. Costs to defendant.

Carr, Kelly, Talbot Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred.

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Bluebook (online)

110 N.W.2d 729, 364 Mich. 113, 1961 Mich. LEXIS 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bednarsh-v-winshall-mich-1961.

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