Roberson v. Thomas

164 N.W.2d 544, 13 Mich. App. 384, 1968 Mich. App. LEXIS 1071

Opinion

Levin, J.

Plaintiffs failed to appear in the common pleas court on the scheduled trial date, whereupon an order was entered dismissing this case with prejudice. Thereafter the judge who entered the order set it aside sua sponte and, following a hearing, adhered to his decision to set aside the dismissal order and granted plaintiffs’ motion for a voluntary nonsuit declaring it would be a dismissal without prejudice. An order was then entered dismissing plaintiffs’ cause without prejudice. There was then pending in the circuit court another action instituted by the plaintiffs against the defendants concerning the same subject matter. 1

The defendants appeal, claiming that the trial judge erred in setting aside the with-prejudice dismissal order and that he was obliged to make the dismissal thereafter entered a dismissal with prejudice.

I.

A trial judge is not obliged to dismiss a case because a party or his attorney do not appear on the scheduled trial date; he may, if he wishes, adjourn the trial date. By setting aside his original with-prejudice dismissal order, the trial judge in this case chose to give the plaintiffs and their counsel another chance to be heard on the merits. 2 No useful purpose would be served by stating the excuses advanced by plaintiffs’ counsel for nonappearance and defendants’ response thereto; it is enough to say we are satisfied the trial judge did not abuse the discretion confided to him in deciding that the penalty of dismissal should not be visited upon the plaintiffs because of their counsel’s neglect to appear on the scheduled trial date. 3

II.

Plaintiffs orally moved for a nonsuit at the hearing (see footnote 1) immediately after the trial judge announced he would adhere to his decision setting aside the original with-prejudice dismissal order. NOR 1963, 504.1 (2) 4 provides, inter alia, that after the defendants’ answer is served “an action shall not be dismissed at the plaintiff’s instance unless by order of court * * * . Unless otherwise specified in the order, a dismissal by order of court under this paragraph is without prejudice.” As previously mentioned, there was pending, in circuit court another action instituted by the plaintiffs against the defendants concerning the same subject matter, and the trial judge granted plaintiffs’ non-suit motion over defendants’ objections.

Although plaintiffs’ nonsuit motion was made in the presence of defendants’ counsel, it is asserted on this appeal that an order may not be entered pursuant to NCR 1963, 504.1(2) dismissing a cause at a plaintiff’s instance upon an oral motion, — that it is necessary the request therefor be in writing. The old rule, Court Rule No 38, § 1 (1945), did require in such a case a “special motion in which the grounds for such discontinuance shall be set forth and which shall be supported by affidavit.” The requirement of such a “special motion” and that it be supported by affidavit does not appear in GrCR 1963, 504.1(2). Accordingly, we see no reason why the trial judge could not act on plaintiffs’ motion for a nonsuit, even though their motion was oral, under the circumstance that the defendants’ counsel was in court and was given an opportunity to speak thereto. The pendency in circuit court of another action between the same parties regarding the same issues provided an adequate ground for - granting the nonsuit. 5

The defendants assert that Bettendorf v. F. W. Woolworth Company (1951), 329 Mich 409, and Glazer v. Silber (1956), 344 Mich 635, obliged the trial judge to make the dismissal one with prejudice. However, Bettendorf and Glaser affirmed lower court decisions dismissing with prejudice for failure to prosecute and denying a voluntary nonsuit. 6

Both Bettendorf and Glaser stand only for the rnle stated in Glaser (p 638): “The granting or denial of a nonsuit rests in the sound discretion of the trial court.”

Here the trial judge decided to grant the nonsuit and expressly to make it a dismissal without prejudice. We find no abuse of discretion in his actions in this case.

Affirmed. Costs to appellees.

Lesinski, C. J., and McGregor, J., concurred.

1 Plaintiffs failed to appear on tie date set for trial, April 29, I960. A judge noted on the file under the printed heading: “Pro ceedings before trial judge” the following: “April 29, 1966, defendant and defendant’s counsel appeared in court; dismissed with prejudice.”

On May 6, 1966, the court, sua sponte set aside the with-prejudice dismissal order entered April 29, 1966.

On June 16, 1966, the parties appeared in court and, after hearing the arguments of counsel, the same judge who entered both prior orders reaffirmed his decision setting aside the April 29, 1966, dismissal order.

An order was entered June 24, 1966, which again set aside the April 29, 1966, with-prejudice dismissal order and which, pursuant to plaintiffs’ oral motion therefor, also granted the plaintiffs a non-suit without prejudice. Apparently unaware that the plaintiffs had already obtained entry of the June 24, 1966, order, defendants moved for and obtained an order dated December 12, 1966, dismissing plaintiffs’ suit without prejudice, and prosecute their appeal from the December 12, 1966, order.

2 No claim is made that the trial judge was without power to modify the April 29, 1966, order or that he acted out of time in doing so. Compare Nagele-Kelly Manufacturing Company v. Hannak (1968), post, 13 Mich App 427, footnote 8 and accompanying text.

3 Compare Banta v. Serban (1963), 370 Mich 367, affirming a dismissal for nonappearanee on the scheduled trial date and recognizing that the trial judge is 'empowered to vacate such an order of dismissal.

4 The parties agree GCR 1963, 504.1(2) governs the voluntary dismissal practice in the common pleas court of Detroit, there being no applicable common pleas court rule. See Glazer v. Silber (1956), 344 Mich 635, 638, and Common Pleas Court of Detroit Rule No 39,

5 If there had not been another action pending, the granting of a nonsuit at an advanced state of the preparation for trial could have been an abuse of discretion. Compare Danziger v. Village of Bingham Farms (1961), 362 Mich 629.

6 In Bettendorf, the common pleas court’s order dismissing without prejudice was reversed; however, as the Supreme Court pointed out in its opinion, the circuit court’s order, on appeal from the common pleas court, directing a dismissal with prejudice and refusing' a nonsuit without prejudice, was entered at a time when the applicable court rule provided for de novo review of common pleas court orders appealed to the circuit court and empowered the circuit judge to give any judgment and make any order “which should have been given or made.” Court Rule No 76, § 18 (1945). Bettendorf, thus, affirmed the decision of a judge (a circuit judge to be sure, but a circuit judge aeting de novo) who chose to deny a nonsuit- without prejudice and to dismiss the case with prejudice for failure to prosecute.

In Glazer the plaintiff orally moved for a nonsuit following denial of his motion, made on the date set for trial, for an adjournment of the trial date. The motion for a nonsuit was also denied, and an order was entered by the common pleas judge dismissing the suit with prejudice. The dismissal order was affirmed by the cireurj; eourt. Affirming the circuit court, the Supreme Court ruled that there was nothing in the record to show any grounds for discontinuance, as required by Buie. 38, that the granting or denial of a nonsuit rests in the sound discretion of the trial court, and there was no abuse of discretion in denying with prejudice the plaintiff’s motion for a nonsuit; the order dismissing the suit with prejudice was affirmed.