Piatkowski v. Mok

185 N.W.2d 413, 29 Mich. App. 426, 1971 Mich. App. LEXIS 1981

• Court: Michigan Court of Appeals
• Decided: January 18, 1971
• Docket: Docket 7142
• Status: Published

Opinions

E. B. Burns, P. J.

Although I am in complete agreement with Judge Churchill’s decision to remand this case to the trial court, I must take issue with his construction of GrCR 1963, 518.3. Judge Churchill concedes that his interpretation is contrary to that adopted by the Federal courts in their analysis of rule 54(c) of the Federal Rules of Civil Procedure.¹ His interpretation is also contrary to the rule’s purpose as envisioned by the Joint Committee on Michigan Procedural Revision. See 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 626 (Committee Notes). More importantly Judge Churchill’s construction directly conflicts with the express language of the rule.

The language of 518.3, in no uncertain terms, states that a judgment must be based on what is proved rather than on what is pleaded. To base a judgment solely on what is pleaded totally ignores the word “entitled”² and the phrase “even if” contained in GCR 1963, 518.3.³ The plain meaning of a general court rule should not be ignored by this Court.

We hold the plaintiff may recover a judgment in the amount of his provable damages irrespective of the ad damnum clause.

The case is remanded for entry of an order granting the motion to amend plaintiff’s ad damnum clause and allowing defendant to amend his answer and defend on the merits of liability.

We do not retain jurisdiction.

Levin, J., concurred.

1 For the Federal court analysis of 54(e), GCR 518.3’s equivalent, see 3 Barron and Holtzoff, Federal Practice & Procedure (Wright ed), § 1194, p 34. In Michigan the Supreme Court gives great weight to the decisions of another state from which a particular statute is substantially adopted. In re Atherton’s Estate (1952), 333 Mich 193. In fact it is presumed that a statute is adopted with its judicial gloss. In re Rackham’s Estate (195.1), 329 Mich 493. It is entirely reasonable to presume that the Michigan Supreme Court was well aware of and readily accepted the interpretation of 54(c) as given by the Federal courts prior-to its adoption by the Court into Michigan practice.

2 See Cullum, v. Topps-Stillman’s, Inc. (1965), 1 Mich App 92, where this Court stated, in its interpretation of 518.3, that an award must be justified on the basis of what the party is “entitled” to receive.

3 “[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded sueh relief in his pleadings.” (Emphasis supplied.)