Feierabend v. Manistee Circuit Judge

234 N.W. 148, 253 Mich. 115, 1931 Mich. LEXIS 737

• Court: Michigan Supreme Court
• Decided: December 9, 1930
• Docket: Calendar 35,308
• Status: Published

Opinion

Potter, J.

Plaintiffs seek mandamus to compel respondent to set aside an order denying petitioners’ motion to set aside their default, and a judgment rendered against them thereon, in the circuit court of Manistee county where they were defendants, in a suit at law,'on the ground their default was improperly entered. Respondent’s return shows no affidavit of merits was filed by petitioners, who were defendants, at any time. The form and contents of an affidavit of merits is prescribed by Circuit Court Rule No. 34 The procedure to set aside a default in actions at law is prescribed by section 4, Circuit Court Rule No. 32, which provides:

“In actions at law, the party desiring to have a default set aside shall, as soon as practicable after he shall know or have reason to believe that the default has been filed, file and serve an affidavit of merits, and make application to the court to have the default set aside.”

It would be useless to set aside petitioners’ default and the judgment entered thereon against them, if they do not have a meritorious defense to plaintiffs’ claim. The showing of defendants’ defense, by an affidavit of merits, is a condition precedent to their right to haye the default and judgment based thereon set aside. It was not complied with. "Writ denied, with costs.

Btttzel, C. J., and Wiest, Clark, McDonald, Sharpe, North, and Fead, JJ., concurred.