Hicks v. Wise

Michigan Court of Appeals

Hicks v. Wise

192 N.W.2d 369, 35 Mich. App. 277, 1971 Mich. App. LEXIS 1445

CourtMichigan Court of Appeals

DecidedJuly 27, 1971

DocketDocket No. 10354

StatusPublished

This text of 192 N.W.2d 369 (Hicks v. Wise) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hicks v. Wise, 192 N.W.2d 369, 35 Mich. App. 277, 1971 Mich. App. LEXIS 1445 (Mich. Ct. App. 1971).

Pincite

Opinion

O’Hara, J.

This is an appeal on leave granted from an order of the trial judge denying a three-part motion:

(1) To quash service made upon defendant Esther M. Wise pursuant to the Michigan nonresident owner-operator statute.¹

(2) To set aside a default judgment rendered against defendant Wise and defendant Mauldin, jomtly and severally.

(3) To “set aside”, i.e., dismiss, a garnishment action against defendant Wise’s automobile liability insurer.

The case is before us on a settled record.

The procedural snarls present are well-nigh impossible to unravel. So that our holding here may have some significance for the trial bench and the bar, we will try to chronologize what happened.

Plaintiffs and defendants were involved in an automobile collision on November 19, 1967. At that time all of the parties were residents of the State of Michigan, at least, so says the complaint to which no answer has ever been made.

According to the docket entry sheet of the court below, which is part of the settled record, the complaint was filed and a summons issued on April 30, 1968. The next entry on the sheet is July 26, 1968. It is “Appearance and Notice” filed. The appearance is in the traditional form, addressed to the attorney of record for plaintiffs and the clerk of the court: “Please enter our appearance on behalf of the defendants in the above * * * cause”. A default judgment was subsequently rendered against both defendants on whose behalf this appearance was entered. However, this appearance [279]*279was not made by the firm which filed the three-part motion which is the basis of this appeal. As far as the settled record shows, the attorneys who perfected the appeal in this case have never filed a signed notice of appearance on behalf of any party to the suit, and no substitution of attorneys has been authorized. The right of the attorneys purporting to represent the named appellants here was challenged by plaintiffs’ counsel in the court below, and the issue was preserved for review. We quote from the settled record:

(Plaintiffs’ counsel): “One moment, your Honor. Mr. Cornell says he represents the insurance company here rather than the defendants. His petition alleges that he represents the defendants.

4b

“Mr. Cornell: Your Honor, that’s a matter of form because the insurance company is not named in the pleadings as a party * * * but we have to come [in] under a party of the lawsuit.”

Somehow or other, this objection doesn’t seem ever to have been disposed of in the court below. The next thing to happen was vigorous argument being made pro and con as to the sufficiency of service made upon the named defendants under the nonresident owner and operator statute, supra. The trial court denied the motion by order of August 25, 1970. This order specified denial of the motion to set aside the default judgment, the garnishment, and the service of process. This denial we can understand, and we would pass upon it except that the circuit court file also contains another order quashing service of process in the same case, as to the same defendants, entered November 17, 1969. If this is not sufficiently perplexing, the attorneys who argued the August 1970 motion to quash [280]*280service admitted on the record that service as to the defendant Mauldin was valid and abandoned their motion as to him, though he still remains a named appellant.

Thus, before us at this time are the following:

(1) A motion to quash service as to a defendant upon whom the validity of service was admitted in the court below.

(2) A motion to quash service as to a defendant by an attorney who has never filed an appearance in her behalf.

(3) A motion to set aside service of process on two defendants as to whom service was previously quashed, which motion was unappealed.

(4) A motion to set aside a garnishment as to an insurance liability carrier for whom no written appearance has ever been formally entered.

If we seem perplexed, it is only because we are.

The last order of record denying all three motions is affirmed for the reason that there seems to be no basis for doing otherwise.

The cause is remanded to the court below with confidence that the learned trial judge will set the whole proceeding back on the right track.

Costs to the appellees.

All concurred.

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O’Hara, J.

This is an appeal on leave granted from an order of the trial judge denying a three-part motion:

(1) To quash service made upon defendant Esther M. Wise pursuant to the Michigan nonresident owner-operator statute.¹

(2) To set aside a default judgment rendered against defendant Wise and defendant Mauldin, jomtly and severally.

(3) To “set aside”, i.e., dismiss, a garnishment action against defendant Wise’s automobile liability insurer.

The case is before us on a settled record.

The procedural snarls present are well-nigh impossible to unravel. So that our holding here may have some significance for the trial bench and the bar, we will try to chronologize what happened.

Plaintiffs and defendants were involved in an automobile collision on November 19, 1967. At that time all of the parties were residents of the State of Michigan, at least, so says the complaint to which no answer has ever been made.

According to the docket entry sheet of the court below, which is part of the settled record, the complaint was filed and a summons issued on April 30, 1968. The next entry on the sheet is July 26, 1968. It is “Appearance and Notice” filed. The appearance is in the traditional form, addressed to the attorney of record for plaintiffs and the clerk of the court: “Please enter our appearance on behalf of the defendants in the above * * * cause”. A default judgment was subsequently rendered against both defendants on whose behalf this appearance was entered. However, this appearance [279]*279was not made by the firm which filed the three-part motion which is the basis of this appeal. As far as the settled record shows, the attorneys who perfected the appeal in this case have never filed a signed notice of appearance on behalf of any party to the suit, and no substitution of attorneys has been authorized. The right of the attorneys purporting to represent the named appellants here was challenged by plaintiffs’ counsel in the court below, and the issue was preserved for review. We quote from the settled record:

(Plaintiffs’ counsel): “One moment, your Honor. Mr. Cornell says he represents the insurance company here rather than the defendants. His petition alleges that he represents the defendants.

4b

“Mr. Cornell: Your Honor, that’s a matter of form because the insurance company is not named in the pleadings as a party * * * but we have to come [in] under a party of the lawsuit.”

Somehow or other, this objection doesn’t seem ever to have been disposed of in the court below. The next thing to happen was vigorous argument being made pro and con as to the sufficiency of service made upon the named defendants under the nonresident owner and operator statute, supra. The trial court denied the motion by order of August 25, 1970. This order specified denial of the motion to set aside the default judgment, the garnishment, and the service of process. This denial we can understand, and we would pass upon it except that the circuit court file also contains another order quashing service of process in the same case, as to the same defendants, entered November 17, 1969. If this is not sufficiently perplexing, the attorneys who argued the August 1970 motion to quash [280]*280service admitted on the record that service as to the defendant Mauldin was valid and abandoned their motion as to him, though he still remains a named appellant.

Thus, before us at this time are the following:

(1) A motion to quash service as to a defendant upon whom the validity of service was admitted in the court below.

(2) A motion to quash service as to a defendant by an attorney who has never filed an appearance in her behalf.

(3) A motion to set aside service of process on two defendants as to whom service was previously quashed, which motion was unappealed.

(4) A motion to set aside a garnishment as to an insurance liability carrier for whom no written appearance has ever been formally entered.

If we seem perplexed, it is only because we are.

The last order of record denying all three motions is affirmed for the reason that there seems to be no basis for doing otherwise.

The cause is remanded to the court below with confidence that the learned trial judge will set the whole proceeding back on the right track.

Costs to the appellees.

All concurred.

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Bluebook (online)

192 N.W.2d 369, 35 Mich. App. 277, 1971 Mich. App. LEXIS 1445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hicks-v-wise-michctapp-1971.