Lud v. Sammons

205 N.W.2d 191, 44 Mich. App. 200, 1972 Mich. App. LEXIS 1117

Opinions

Quinn, P. J.

Plaintiff’s negligence action was dismissed for lack of progress. On plaintiff’s motion and pursuant to GCR 1963, 528.3(6), an order of reinstatement entered. On leave granted, defendants appeal.

The action arose out of a traffic accident which occurred October 14, 1965. The action was filed in circuit court January 10, 1967, and it was noticed for a pretrial conference on July 5, 1967. The pretrial conference was not held, as plaintiff’s attorney did not appear, and in September, 1968, the case was dismissed for lack of progress. July 21, 1971, plaintiff’s counsel moved to reinstate the case. The only basis for relief disclosed by the motion was excusable neglect. The motion was granted under authority of GCR 1963, 528.3(6).

The precise issue is: may the one-year time limitation contained in GCR 1963, 528.3 be circumvented by granting relief under GCR 1963, 528.3(6) when the only reason for relief is excusable neglect?

GCR 1963, 528.3 is based on FR Civ P 60(b). The United States Supreme Court has held that where only neglect is shown the one year limitation applies and the broad "any other reason” clause of 60(b), GCR 1963, 528.3(6), is not available, Klap-prott v United States, 335 US 601; 69 S Ct 384; 93 L Ed 266 (1949).

Reversed with costs to defendants.

J. H. Gillis, J., concurred.