DOWNRIVER LOAN CO. v. Gabbert

195 N.W.2d 34, 37 Mich. App. 411, 1971 Mich. App. LEXIS 1244

• Court: Michigan Court of Appeals
• Decided: December 8, 1971
• Docket: Docket 10656
• Status: Published

Opinion

Per Curiam.

Plaintiff has filed an appeal of right from an order setting aside a default against the garnishee defendant. Upon our review of the record, it is clear that such an order is interlocutory in nature and therefore may not be the subject of an appeal of right. G-CR 1963, 806.1.

On May 6, 1970, plaintiff secured a judgment against the principal defendants. An affidavit for writ of garnishment was filed on July 31, 1970, and the garnishment writ was issued on that date. Garnishee summons was served upon garnishee defendant on August 5, 1970, and garnishee defendant thereafter filed a disclosure of liability to the principal defendants. Plaintiff then entered a default against the garnishee defendant for failure of the garnishee defendant to serve a copy of its disclosure upon plaintiff’s attorney; garnishee defendant moved to set aside the default; said motion was granted by the trial court; and plaintiff timely filed a claim of appeal in this Court.

An order setting aside a default is a nonfinal, and hence interlocutory judgment. Quail v Cole, 260 Mich 642 (1932). * As such, it may be reviewed by this Court only upon the filing of an application for leave to appeal. Conlon v State Treasurer, 23 Mich App 646 (1970). No application for leave to appeal having been filed, this Court can do no more than dismiss the appeal. Fox v Board of Regents of the University of Michigan, 375 Mich 238 (1965).

The appeal is therefore dismissed. No costs, appellee not having initiated a motion to dismiss pursuant to GCR1963, 817.5.

* See also, American Eutectic Welding Alloys Sales Co, Inc, v Grier, 363 Mich 175 (1961); United Insurance Company of America v Goldenberg, 366 Mich 167 (1962); Ordon v Sarko, 371 Mich 689 (1963).