Black, J.
The tie game played by Moody against Carnegie a year ago (356 Mich 434) did but forecast our disagreement in this case.
' Having bumped my own way through this Court’s bulbous verbosity of dissertation, upon the supposed elasticity of time-limitations appearing in Court Rules Nos 28 and 48 (1945), I find the field clear for independent judgment that a personally served defendant (or plaintiff for that matter), seeking by late motion or application to avoid his entered default (on strength of which due proceedings have been taken), may do so only by charging and proving that his litigant opponent has committed a fraud, upon him or the court, either in bringing about entry of such default or in the inducement of inaction by such personally served defendant. Such judgment shortens the present opinion, which is well.
In Moody the total time allowed — by Court Rule .No 48 — for application for rehearing had expired. [265]*265Here the corresponding time allowed by Court Rule No -28 — for setting aside the default, of defendants Dalton and International Brotherhood — had expired more than 8 months prior to filing of the present petition for rehearing. It is not claimed that plaintiff, in the proceedings leading up to entry, of such default or, for that matter, in the course of proceedings thereafter, was guilty of fraud or other deception which, according to recognized exception,, would relieve such defendants from the limitational, consequences of said Rule No 28. Further, and as against the claim of these defendants that entry of their default was irregular, I agree with Judge Bach that the default .proceedings were meticulously proper and that such defendants were repeatedly and promptly notified thereafter, not only of the fact of entry of their default, but of impending trial of the cause.
No heed was given, by defendants Dalton and International Brotherhood, to any of these notices. The last one was given by the assignment clerk of the court. By it counsel of record were notified, under date of October 9, 1958, that the cause would come on for trial October 21, 1958 (which it did). Between the date of such notice and the stated date of trial, Milwaukee counsel appearing for defendants Dalton and International Brotherhood wrote a Saginaw representative of defendant Local Union No. 486 as follows:
“We received notice from William L. Hellerman that the Haenlien case was set for trial on October 21, 1958. We understand that the Teamsters have no interest in the Haenlien Company and do not desire to litigate the issues involved in that case. We suggest that your local attorney inform the court and the plaintiff’s counsel of this fact with the view in mind of having the Teamsters dismissed as a party by stipulation.”
[266]*266This letter, proving as it does timely knowledge of counsel that hearing of the cause was imminent and that a decision “not to litigate” had been reached, fully supports the chancellor’s summary conclusion “that there was no intention on the part of defendants [referring to defendants Dalton and International Brotherhood] to defend the action.”
In denying this application for rehearing, the chancellor rightfully followed the rule of White v. Sadler, 350 Mich 511, that is to say:
“Our Court has traditionally been strict on setting aside defaults once regularly entered. Where a default following personal service is regularly taken, the court rule providing that it shall not be set aside after a certain time (presently 4 months) has generally been regarded as mandatory (Hensey v. Hensey, 331 Mich 518; Gombasy v. Gombasy, 318 Mich 139; Watkins v. Wayne Circuit Judge, 247 Mich 237), and this rule, however, harsh, has been subject to few exceptions, the most notable being that of fraud (Hensey v. Hensey, supra), which is not urged or suggested here.” (Quotation from White, pp 521, 522.)
An application for rehearing under Court Rule No 48, by a party in default, provides no means of getting around the time-limitation of Court Rule No 28, which is to say that these defendants presently have no standing to apply under Rule No 48 for rehearing. Their default has never been set aside. Nor has any petition or motion to vacate such default been submitted. Consequently, this application was out of order and is now out of order. See, to the point, McInerney’s, Inc., v. Dunford, 341 Mich 477.
A final question is raised; that no State court may entertain jurisdiction over a case “which originated with an employer’s charge of unfair labor practices against unions in an industry which affects com[267]*267merce,” unless there is “proof of violence.” Our recent decision in Town & Country Motors, Inc., v. Local Union No. 328, 355 Mich 26, is cited in support.
In my view this jurisdictional question was not open to consideration below, nor is it here, for want of fact-proof of its decisive premises. See Austin v. Painters’ District Council, 339 Mich 462, 484, 485. There the defendants, by “petition to reopen the cause for certain purposes,” sought without success to introduce a corresponding defense of exclusively Federal jurisdiction. Sometimes, jurisdictional questions need proof to make them effective. That is true here. The asserted want of jurisdiction does not appear in or on the face of the record.
I would affirm, with costs to plaintiff.
Supplement (July 12, 1960):
This case was duly assigned to the writer prior to submission thereof during the April term. In pursuance of such assignment the foregoing opinion was submitted for consideration of our membership on May 11, 1960. Now, under term-delayed date of June 30th, Justices Carr and Smith have gotten around to writing that the Court should pursue other and separate courses toward appellate judgment. One would affirm with explanation of what he has written in Moody v. Carnegie, 356 Mich 434. The other would reverse for want.of determination below of a question of jurisdiction, pleaded affirmatively by these defaulted defendants, the validity of which question depended below and depends now on defensive-essential proof the defaulted labor union chose not to present.
My Brother Carr, bolstering his extended writing in Moody, refers to the allegedly defrauded party (in that case) as “an elderly widow.” The “elderly widow,” for whom my Brother bleeds anew, was shown in the cited case as having been party to a [268]*268secret agreement for champertous maintenance of the suit; her share of the litigious spoils to be $250 in event of success with the subject realty going to the thoroughly concealed real party in interest (one Frank B. Donohue). For Justice Carr’s conclusion-ary presentation of these facts, see 356 Mich at page 436. For my presentation thereof, with direct quotation of the agreement to sue in the name of the “elderly widow,” see pages 450 and 451 of the same volume.
' I would say this only, by way of compendious reply to my Brother’s bootstrap review of Moody: At first writing Justice Carr warily refrained from saying who perpetrated the “fraud” as found by him. Writing in today’s case, he is yet unwilling to name and so accuse the alleged perpetrator. One thing is sure.
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Black, J.
The tie game played by Moody against Carnegie a year ago (356 Mich 434) did but forecast our disagreement in this case.
' Having bumped my own way through this Court’s bulbous verbosity of dissertation, upon the supposed elasticity of time-limitations appearing in Court Rules Nos 28 and 48 (1945), I find the field clear for independent judgment that a personally served defendant (or plaintiff for that matter), seeking by late motion or application to avoid his entered default (on strength of which due proceedings have been taken), may do so only by charging and proving that his litigant opponent has committed a fraud, upon him or the court, either in bringing about entry of such default or in the inducement of inaction by such personally served defendant. Such judgment shortens the present opinion, which is well.
In Moody the total time allowed — by Court Rule .No 48 — for application for rehearing had expired. [265]*265Here the corresponding time allowed by Court Rule No -28 — for setting aside the default, of defendants Dalton and International Brotherhood — had expired more than 8 months prior to filing of the present petition for rehearing. It is not claimed that plaintiff, in the proceedings leading up to entry, of such default or, for that matter, in the course of proceedings thereafter, was guilty of fraud or other deception which, according to recognized exception,, would relieve such defendants from the limitational, consequences of said Rule No 28. Further, and as against the claim of these defendants that entry of their default was irregular, I agree with Judge Bach that the default .proceedings were meticulously proper and that such defendants were repeatedly and promptly notified thereafter, not only of the fact of entry of their default, but of impending trial of the cause.
No heed was given, by defendants Dalton and International Brotherhood, to any of these notices. The last one was given by the assignment clerk of the court. By it counsel of record were notified, under date of October 9, 1958, that the cause would come on for trial October 21, 1958 (which it did). Between the date of such notice and the stated date of trial, Milwaukee counsel appearing for defendants Dalton and International Brotherhood wrote a Saginaw representative of defendant Local Union No. 486 as follows:
“We received notice from William L. Hellerman that the Haenlien case was set for trial on October 21, 1958. We understand that the Teamsters have no interest in the Haenlien Company and do not desire to litigate the issues involved in that case. We suggest that your local attorney inform the court and the plaintiff’s counsel of this fact with the view in mind of having the Teamsters dismissed as a party by stipulation.”
[266]*266This letter, proving as it does timely knowledge of counsel that hearing of the cause was imminent and that a decision “not to litigate” had been reached, fully supports the chancellor’s summary conclusion “that there was no intention on the part of defendants [referring to defendants Dalton and International Brotherhood] to defend the action.”
In denying this application for rehearing, the chancellor rightfully followed the rule of White v. Sadler, 350 Mich 511, that is to say:
“Our Court has traditionally been strict on setting aside defaults once regularly entered. Where a default following personal service is regularly taken, the court rule providing that it shall not be set aside after a certain time (presently 4 months) has generally been regarded as mandatory (Hensey v. Hensey, 331 Mich 518; Gombasy v. Gombasy, 318 Mich 139; Watkins v. Wayne Circuit Judge, 247 Mich 237), and this rule, however, harsh, has been subject to few exceptions, the most notable being that of fraud (Hensey v. Hensey, supra), which is not urged or suggested here.” (Quotation from White, pp 521, 522.)
An application for rehearing under Court Rule No 48, by a party in default, provides no means of getting around the time-limitation of Court Rule No 28, which is to say that these defendants presently have no standing to apply under Rule No 48 for rehearing. Their default has never been set aside. Nor has any petition or motion to vacate such default been submitted. Consequently, this application was out of order and is now out of order. See, to the point, McInerney’s, Inc., v. Dunford, 341 Mich 477.
A final question is raised; that no State court may entertain jurisdiction over a case “which originated with an employer’s charge of unfair labor practices against unions in an industry which affects com[267]*267merce,” unless there is “proof of violence.” Our recent decision in Town & Country Motors, Inc., v. Local Union No. 328, 355 Mich 26, is cited in support.
In my view this jurisdictional question was not open to consideration below, nor is it here, for want of fact-proof of its decisive premises. See Austin v. Painters’ District Council, 339 Mich 462, 484, 485. There the defendants, by “petition to reopen the cause for certain purposes,” sought without success to introduce a corresponding defense of exclusively Federal jurisdiction. Sometimes, jurisdictional questions need proof to make them effective. That is true here. The asserted want of jurisdiction does not appear in or on the face of the record.
I would affirm, with costs to plaintiff.
Supplement (July 12, 1960):
This case was duly assigned to the writer prior to submission thereof during the April term. In pursuance of such assignment the foregoing opinion was submitted for consideration of our membership on May 11, 1960. Now, under term-delayed date of June 30th, Justices Carr and Smith have gotten around to writing that the Court should pursue other and separate courses toward appellate judgment. One would affirm with explanation of what he has written in Moody v. Carnegie, 356 Mich 434. The other would reverse for want.of determination below of a question of jurisdiction, pleaded affirmatively by these defaulted defendants, the validity of which question depended below and depends now on defensive-essential proof the defaulted labor union chose not to present.
My Brother Carr, bolstering his extended writing in Moody, refers to the allegedly defrauded party (in that case) as “an elderly widow.” The “elderly widow,” for whom my Brother bleeds anew, was shown in the cited case as having been party to a [268]*268secret agreement for champertous maintenance of the suit; her share of the litigious spoils to be $250 in event of success with the subject realty going to the thoroughly concealed real party in interest (one Frank B. Donohue). For Justice Carr’s conclusion-ary presentation of these facts, see 356 Mich at page 436. For my presentation thereof, with direct quotation of the agreement to sue in the name of the “elderly widow,” see pages 450 and 451 of the same volume.
' I would say this only, by way of compendious reply to my Brother’s bootstrap review of Moody: At first writing Justice Carr warily refrained from saying who perpetrated the “fraud” as found by him. Writing in today’s case, he is yet unwilling to name and so accuse the alleged perpetrator. One thing is sure. Defendant Carnegie and his counsel were innocent of fraud, or participation in the commission of fraiid. So, if “fraud” really did taint the plan aiid the presentation of the suit brought in Mrs. /Moody’s name, was it not committed exclusively by some one or all of those who participated in the illegal agreement to sue and divide?
Aside from the above, both opinions of Moody speak for themselves. One group would insert a stretehable-at-will number of weeks, months, or years in the time-limitational periods of Court Rule Nos 28 and 48 (1945). The other group would not. Such being the divisive state of things, how trustworthy — anyway—are limitations of time by court rule? Let troubled lawyers answer in the safe privacy of Michigan law offices, seasoning their speech with salt
[269]*269As for Mr. Justice Smith’s opinion, I can say only that my signature will never sanction the mere pleading, of crossed jurisdictional fingers tagged “you can’t touch us,” as a means of forcing the trial court to investigate and record the evidentiary facts which deny or uphold local jurisdiction under the national labor relations act. That burden rests on the affirmative pleader, and our trial courts are not to be toyed with by the practice of depositing such a pleading and then ignoring the court. Which is to say that this defendant labor union should have presented proof in support of its jurisdictional plea if possessed of such proof. There being no such proof, clear jurisdiction to proceed appeared below and now appears on the face of this record.
Today’s question of jurisdiction is simple of presentation: Did the court have power to enter upon the inquiry presented by the pleadings'? The very nature of its self-styled “affirmative defense” is an admission by the defendant union of a “yes” answer. By that plea the union asked the court to receive evidence in support thereof and, upon such evidence, to find judicially that it — the union — was immune from State court suit as pleaded. Having duly acquired jurisdiction — conferred by the plaintiff’s bill and the defensive pleadings as filed — the court below was authorized to proceed until it was “judicially informed that its power over the cause has been suspended.” Phoenix Insurance Company v. Pechner, 95 US 183, 186 (24 L ed 427). It was never so informed, and this my Brother Smith admits:
I voted to sustain the defendant union in Town & Country Motors, Inc., v. Local Union No 328, 355 Mich 26, because that union amply supported, with proof, its plea to the jurisdiction. I vote here to overrule the defendant union because it has failed to offer proof supporting its like plea. When a union is right, I shall vote to support its cause. When it [270]*270is wrong, I shall vote to say so. No particular class of litigant is always right, which remark goes for corporate unions and labor unions alike.
I vote again to affirm, with costs to plaintiff.
Kavanagh, J., concurred with Black, J.
“Let thy speech he alway with grace, seasoned with salt, that ye may know how ye ought to answer every man.” (Golossians 4:6.)