Corley v. Krawczak

191 N.W.2d 514, 34 Mich. App. 472, 1971 Mich. App. LEXIS 1634

Opinions

J. H. Gillis, J.

This is an appeal as of right from an order entered granting summary judgment for the defendants in a negligence case.

On January 3, 1963, plaintiff was seriously injured when struck by a wrecker operated by an employee of defendant Krawczak. As a result of this accident a suit was filed by plaintiffs against defendants on May 6, 1963. This first suit was dismissed by the trial court on November 10, 1967, for lack of progress after a motion to dismiss was filed by defendants. The dismissal of this first suit was appealed to this Court and was affirmed in Corley v. Krawczak (1969), 16 Mich App 176.

On February 19, 1970, plaintiffs filed a new lawsuit against defendants alleging the same cause of action as in the first suit. A motion for summary judgment was filed by defendants on the grounds that the dismissal of the first suit for no progress acted as an adjudication upon the merits under GCR 1963, 504.2. The trial court granted defendants’ motion for summary judgment and plaintiffs appeal.

Plaintiffs argue on appeal that the prior dismissal did. not act as an adjudication upon the merits, so this subsequent action should not be barred.

GCR 1963, 504.2 states that a dismissal for no progress acts as an adjudication upon the merits of the action unless the court in its order specifically states otherwise. In the instant case the order of dismissal entered in the prior suit did not state that the dismissal was to be without prejudice. Therefore, under GCR 1963, 504.2, the prior dismissal acts as an adjudication upon the merits and bars this subsequent suit. Rose v. Rose (1968), 10 Mich App 233. See, also, Green v. Wayne Soap Company (1971), 33 Mich App 74.

Affirmed. Costs to appellee.

Y. J. Brennan, P. J., concurred.