Hartman v. Roberts-Walby Enterprises, Inc.

155 N.W.2d 842, 380 Mich. 105, 1968 Mich. LEXIS 140

Opinions

O’Hara, J.

We granted leave to review an order of the Court of Appeals granting a motion to dismiss an appeal claimed as of right to that Court from the circuit court of Oakland county.

The relevant facts are as follows:

In April, 1964, plaintiff-appellee began an action under the “dramshop” act

* against the defendant tavern keeper, Roberts-Walby Enterprises, Inc., and its statutory surety defendant-appellant, United Bonding Insurance Company. Service on the surety was made pursuant to statute on the insurance commissioner. According to appellant surety company it sent the copy of the process to its general agent in Michigan. Allegedly it was lost in the mail and the first notice the general agent had of the action was' a notification that a default judgment in the full amount of its statutory bond, $5,000, had been taken on May 25, 1966.

Defendant-appellant on June 27, 1966, filed a motion entitled “Motion to set aside default judgment.” The motion, by its express terms, was predicated on Rules 520 and 528, GCR 1963. Appellee responsively filed an answer in opposition thereto on June 30, 1966. Several appearances before the circuit judge followed and journal entries were made reciting denials of motions to set aside the default and denials of motions for rehearings thereof, but no order from which jurisdictional time could be computed was entered until August 4, 1966. The order denied the prayer to set aside the default. The learned circuit judge apparently made known his intended denial from the bench and a journal entry so noted on July 11, 1966.

Appellant filed a motion for rehearing on July 18, 1966. Again, no formal order from which jurisdictional time could be computed was entered disposing of the July 18 motion until October 10, 1966. From this order appellant claimed an appeal on October 24, 1966. On November 2, 1966, appellee filed a motion to dismiss the claim of appeal as not timely filed in accordance with, the requirements of Rule 803.1, GCR 1963. In the claim of appeal, however, appellant specifically made reference to the orders of August 4 denying the motion to set aside the default judgment, and the order denying the motion for rehearing entered October 10, 1966. The Court of Appeals dismissed the appeal “as not timely filed,” and did not specify the rule or rules which it considered to be involved.

Under these circumstances, we can only relate the proceedings to the rules specified in the initial motion filed June 27, 1966, namely, Rules 520 and 528 of GCR 1963. No failure to comply with jurisdictional time provisions of either rule appears of record.

Accordingly, and since the jurisdictional time begins to run upon the date of actual entry and that only, we are constrained to hold that the Court of Appeals erred in dismissing appellant’s claim of appeal. That Court’s order of dismissal is therefore vacated. Costs to the appellant.

Dethmers, C. J., concurred with O’Hara, J.

CLS 1961, §436.22 (Stat Ann 1965 Cum Supp § 18.993).