Mills v. McLeod

49 N.W. 134, 86 Mich. 290, 1891 Mich. LEXIS 924

• Court: Michigan Supreme Court
• Decided: June 5, 1891
• Status: Published

Opinion

Grant, J.

The bill in this case was filed to quiet title to certain lands in the city of Detroit. The lands had been platted by the defendants McLeod, together with other lands which belonged to them.

The bill was filed January 14, 1890. Subpoenas were duly served upon defendants, and on February 10, 1890, a copy of the bill was given to Mr. Andrus, of the firm of Corliss, Andrus & Leete, attorneys, who were acting in the matter for the defendants. March 19 the order pro confesso was entered.¹ July 15 an application was made to set aside this order. The motion was heard July 28, and denied August 8.

The city appeared in the case, which was heard June 18, and decree entered for complainants.

Mr. Keena, one of the solicitors for complainants, swore in his affidavit opposing the motion that he had conversations with Duncan McLeod and Andrus, both before and after said pro confesso, in which it was understood both by McLeod and Andrus that defendant McLeod intended to allow the bill to be taken as confessed in order to avoid unnecessary expense. Mr. Andrus swore in his affidavit that, after an examination, he advised McLeod that the complainants were entitled to the relief prayed for; that McLeod instructed him not to file an answer, but to endeavor to make a settlement without making any defense. These affidavits are met by the affidavits of Duncan McLeod alone. We are also satisfied that the proposed answer does not meet the case made by the bill. Under these circumstances we do not think the court abused its discretion in refusing to set aside the order pro confesso.

The decree of the court is affirmed, with costs.

Champlin, C. J., Morse and Lons, JJ., concurred. McGrath, J., did not sit.

1 This order was based upon an affidavit showing the non-appearance of the defendants.