Green v. Wayne Soap Company

189 N.W.2d 729, 33 Mich. App. 74, 1971 Mich. App. LEXIS 1704

• Court: Michigan Court of Appeals
• Decided: April 23, 1971
• Docket: Docket 8295
• Status: Published

Opinions

O’Hara, J.

Before they commenced this action in the circuit court, the plaintiffs, Philip and Elizabeth Oreen, had commenced in the Common Pleas Court for the City of Detroit another action against the defendants, Wayne Soap Company and Joseph Putz Company, Inc. Both actions are based on the same claims of the plaintiffs against the defendants. The action first commenced, the common pleas action, was dismissed on October 14, 1968, for lack of progress pursuant to Common Pleas Court Rule 27.3.¹ A motion to reinstate was not filed within the six-month period prescribed in Common Pleas Court Rule 16.4. Thereafter, on April 25,1969, this action was commenced in the circuit court.

“The Clerk of the Court shall on each secular day of each month prepare a list of cases by number, in which no progress has been made for six months. Said list of cases shall be published in the Detroit Legal News at least one full day preceding calling of said cases before the Presiding Judge. Notice of the call date shall be published as directed by the Presiding Judge. The Presiding Judge may make such disposition of each case as he deems just and proper.”

The defendants appeal, on leave granted, from a denial of their motions in the circuit court action for accelerated judgment. They contend that the no progress dismissal of the common pleas action operated as an adjudication on the merits and, therefore, the circuit court action is barred by the doctrine of res judicata.

We find something inherently objectionable in plaintiffs being able to institute actions in one court, purposefully or carelessly allowing them to be dismissed for lack of progress, and then, with no requirements other than increasing the ad damnum clause and paying an additional filing fee, reinstitute the same cause of action in another court.

By so doing they subject defendants, against whom plaintiffs bear the burden of proof, to the requirement of retaining counsel twice, and answering twice, thus assuming a double expense at a stage where no liability against defendants has been established.

Surely defendants may properly lament with Hamlet that the “law’s delay” is one of “the heartaches and thousand natural shocks that flesh is heir to”.

At the glacial docket pace of overburdened trial courts, defendants, under the rule interpretation of my esteemed colleague, may be in litigation ad infinitum ad nauseam without ever an adjudication of their claimed fault.

Where does fairness reside? Plaintiffs here had ample opportunity to have their “day in court” in the forum they originally chose. By what reasoning may they eschew it and claim an additional one in another ?

Common Pleas Court Rule 27.3, the no-progress rule, must he read in conjunction with Common Pleas Court Rule 39 which provides that “in all matters not herein provided for, or not expressly prohibited or specified by statute, the Michigan Court Rule shall govern.” (Emphasis supplied.)

Common Pleas Court Rule 27.3 does not expressly provide for the ultimate effect of its provisions. Consequently, Common Pleas Court Rule 39 makes the provisions of the General Court Rules pertaining to the effect of an involuntary dismissal, applicable. GCR 1963, 504.2 provides as follows:

“Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits.” (Emphasis supplied.)

In view of the fact that GCR 1963, 504.1(1) and (2) expressly provide for voluntary nonsuits at plaintiff’s instance, a dismissal for lack of progress (see GCR 1963, 501.3), must be viewed as an involuntary dismissal made pursuant to GCR 1963, 504.2.

A litigant, aggrieved by a so-called “general housecleaning no-progress dismissal”, is not without remedy. He is entitled to move for reinstatement or for voluntary nonsuit, if his motion is timely made.

It may be true that creating a bar as a result of an order of a court, based on the passage of time and publication, is harsh, but it does not constitute a denial of due process. It may be that it would be more desirable or equitable to require a litigant who seeks to have a dismissal for no progress constitute a bar to serve a timely written notice of the dismissal on the other party; however, the power to determine this is the prerogative of the Supreme Court under its rule-making powers and not ours by interpretation.

We are constrained to hold that the dismissal here operated to establish the defense of res judicata. The motion for accelerated judgment should have been granted.

Reversed. Costs to defendants.

Lesinski, C. J., concurred.

1 CommonPleas Court Rule 27.3: