Levin, P. J.
The trial judge, by an order
nunc pro tunc,
reformed and amended a default judgment entered in favor of plaintiff-appellant Wayne Creamery against defendant-appellee Andrew Suyak to eliminate language in the original default judgment which found Suyak indebted to the Creamery for “conversion” of money and “willful and reckless” misuse of a Creamery-owned truck used by Suyak in working one of Creamery’s milk routes. Suyak
was adjudicated a bankrupt between the date on which the default judgment was entered and the date on which the amending
nunc pro tunc
order was entered. The form of the default judgment would be relevant to the question whether the indebtedness evidenced by that default judgment could be discharged in bankruptcy.
(See 11 USC § 25 and footnote 8.)
The complaint alleged that Suyak leased a milk route from Creamery and, in connection with that lease, purchased from Creamery accounts receivable and a milk truck; that Suyak executed both a chattel mortgage of the truck and a continuing assignment of accounts receivable to secure payment of all then and future indebtedness of Suyak to Creamery; and that he operated the milk route for a little over a year, at which time he breached the lease for which Creamery claimed damages of $6,627.30.
Following entrance of Suyak’s default for failure to answer and after a change in the attorneys representing Creamery, Creamery moved for default judgment. At the hearing on that motion, Creamery’s witness testified to the execution and delivery of the lease, the chattel mortgage and the assignment of accounts receivable;
he further testified that Suyak collected, but did not turn over to the Creamery, $5,229.59 belonging to Creamery, and that repairs to the truck were required because Suyak failed to maintain the vehicle properly. There were several other debit and credit items, including an item of approximately $740 for damages resulting from the alleged wrongful termina
tion of the lease. For all these damages, a default judgment in the amount of $5,969.59 was entered on November 19, 1965. The judgment recited that $5,229.59 of Suyak’s indebtedness was for conversion of Creamery moneys to his own use, and $328.81 was for willful and reckless misuse of the truck.
Following entry of the default judgment, Creamery pursued various remedies in an effort to collect it. Claiming he was never served with summons or otherwise made aware of the pendency of these proceedings, Suyak, on February 14, 1966, moved to set aside the default judgment, which motion was denied on March 1, 1966. On March 8, 1966, a motion for “reformation and amendment” of the default judgment was filed by Suyak, claiming relief pursuant to EJA § 2311
and GrCE 1963, 528.3. He was adjudicated a bankrupt on March 30,1966. The amending order
nunc pro tunc,
from which Creamery now appeals, was entered on April 1, 1966.
I.
Suyak’s motion for reformation and amendment of the default judgment asserted that the just cited statutory provision and court rule applied because the complaint did not allege conversion and did not sound in tort. Thus, Suyak alleged, (1) the complaint failed to make him aware that Creamery was seeking a judgment not dischargeable in bankruptcy, (2) the findings in the original default judgment of conversion and willful and reckless misuse of the truck did not conform to the allegations in the complaint, (3) through mistake or inadvertence, fraud,
misrepresentation, or other misconduct on the part of Creamery the court was led to enter a default judgment in the form in which it was entered, and (4) equity and good conscience required reformation and amendment of the default judgment to conform with Creamery’s pleadings.
Creamery answered, contending that the proofs taken during the hearing on Creamery’s motion for default judgment substantiated the findings of the court in the default judgment as originally entered.
Creamery further contended that, if the court should find that there was a variance between those proofs and Creamery’s pleadings, the court should enter an order pursuant to EJA § 2311, amending the complaint to conform with the proofs.
Counsel for both parties, but no witnesses, were heard at the hearing on Suyak’s motion to reform and amend the default judgment held on March 25, 1966. After hearing argument, the court stated the default judgment containing findings that Suyak converted to his own use moneys belonging to Creamery should not have been entered upon a complaint alleging only breach of the terms of the lease. Creamery then renewed its request that the court permit an amendment of the complaint pursuant to EJA § 2311. Suyak’s counsel stated he had no objection to the court granting Creamery leave to amend its complaint, so long as Suyak was permitted to answer such an amended complaint. Creamery’s counsel responded he was willing to stipulate that there should be a trial if Suyak would put up a bond, to which Suyak’s counsel responded that, if a bond could be obtained, Suyak would file
it and the parties could have
“a
trial on the issues.-”, The court expressed douht whether Suyak could obtain a bond.
The court then announced it would amend the. judgment to conform to the pleading’s, eliminating the reference to conversion.
The court refused to, allow Creamery to amend its complaint.
II.
Suyak desired that, the indebtedness reflected in the judgment be dischargeable in bankruptcy, and Creamery desired to avoid the effect of such a discharge. Suyak desired to reform and amend the judgment to conform to the pleadings, while Creamery desired to reform and amend the pleadings to conform to its concept of the proofs. On this record we can see no reason, and none has been suggested by either counsel, why either party’s prayer for reformation and amendment was any more deserving than the other’s.
However, we are satisfied the complaint failed to state facts apprising Suyak of the nature of the claim which the default judgment found had been established, and that the discrepancy between the complaint’s allegations and the default judgment’s findings is of sufficient importance on the practical issue between the parties — the dischargeability of the indebtedness — that the trial judge correctly ruled the default judgment should not have been permitted to stand as originally entered.
The purpose of a complaint is to apprise the defendant of the issues he will be required to meet
and the relief sought. GOB 1963, 111.1
requires the pleader to state the facts with such specific averments as are necessary reasonably to inform the adverse party of the cause he is called upon to defend.
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Levin, P. J.
The trial judge, by an order
nunc pro tunc,
reformed and amended a default judgment entered in favor of plaintiff-appellant Wayne Creamery against defendant-appellee Andrew Suyak to eliminate language in the original default judgment which found Suyak indebted to the Creamery for “conversion” of money and “willful and reckless” misuse of a Creamery-owned truck used by Suyak in working one of Creamery’s milk routes. Suyak
was adjudicated a bankrupt between the date on which the default judgment was entered and the date on which the amending
nunc pro tunc
order was entered. The form of the default judgment would be relevant to the question whether the indebtedness evidenced by that default judgment could be discharged in bankruptcy.
(See 11 USC § 25 and footnote 8.)
The complaint alleged that Suyak leased a milk route from Creamery and, in connection with that lease, purchased from Creamery accounts receivable and a milk truck; that Suyak executed both a chattel mortgage of the truck and a continuing assignment of accounts receivable to secure payment of all then and future indebtedness of Suyak to Creamery; and that he operated the milk route for a little over a year, at which time he breached the lease for which Creamery claimed damages of $6,627.30.
Following entrance of Suyak’s default for failure to answer and after a change in the attorneys representing Creamery, Creamery moved for default judgment. At the hearing on that motion, Creamery’s witness testified to the execution and delivery of the lease, the chattel mortgage and the assignment of accounts receivable;
he further testified that Suyak collected, but did not turn over to the Creamery, $5,229.59 belonging to Creamery, and that repairs to the truck were required because Suyak failed to maintain the vehicle properly. There were several other debit and credit items, including an item of approximately $740 for damages resulting from the alleged wrongful termina
tion of the lease. For all these damages, a default judgment in the amount of $5,969.59 was entered on November 19, 1965. The judgment recited that $5,229.59 of Suyak’s indebtedness was for conversion of Creamery moneys to his own use, and $328.81 was for willful and reckless misuse of the truck.
Following entry of the default judgment, Creamery pursued various remedies in an effort to collect it. Claiming he was never served with summons or otherwise made aware of the pendency of these proceedings, Suyak, on February 14, 1966, moved to set aside the default judgment, which motion was denied on March 1, 1966. On March 8, 1966, a motion for “reformation and amendment” of the default judgment was filed by Suyak, claiming relief pursuant to EJA § 2311
and GrCE 1963, 528.3. He was adjudicated a bankrupt on March 30,1966. The amending order
nunc pro tunc,
from which Creamery now appeals, was entered on April 1, 1966.
I.
Suyak’s motion for reformation and amendment of the default judgment asserted that the just cited statutory provision and court rule applied because the complaint did not allege conversion and did not sound in tort. Thus, Suyak alleged, (1) the complaint failed to make him aware that Creamery was seeking a judgment not dischargeable in bankruptcy, (2) the findings in the original default judgment of conversion and willful and reckless misuse of the truck did not conform to the allegations in the complaint, (3) through mistake or inadvertence, fraud,
misrepresentation, or other misconduct on the part of Creamery the court was led to enter a default judgment in the form in which it was entered, and (4) equity and good conscience required reformation and amendment of the default judgment to conform with Creamery’s pleadings.
Creamery answered, contending that the proofs taken during the hearing on Creamery’s motion for default judgment substantiated the findings of the court in the default judgment as originally entered.
Creamery further contended that, if the court should find that there was a variance between those proofs and Creamery’s pleadings, the court should enter an order pursuant to EJA § 2311, amending the complaint to conform with the proofs.
Counsel for both parties, but no witnesses, were heard at the hearing on Suyak’s motion to reform and amend the default judgment held on March 25, 1966. After hearing argument, the court stated the default judgment containing findings that Suyak converted to his own use moneys belonging to Creamery should not have been entered upon a complaint alleging only breach of the terms of the lease. Creamery then renewed its request that the court permit an amendment of the complaint pursuant to EJA § 2311. Suyak’s counsel stated he had no objection to the court granting Creamery leave to amend its complaint, so long as Suyak was permitted to answer such an amended complaint. Creamery’s counsel responded he was willing to stipulate that there should be a trial if Suyak would put up a bond, to which Suyak’s counsel responded that, if a bond could be obtained, Suyak would file
it and the parties could have
“a
trial on the issues.-”, The court expressed douht whether Suyak could obtain a bond.
The court then announced it would amend the. judgment to conform to the pleading’s, eliminating the reference to conversion.
The court refused to, allow Creamery to amend its complaint.
II.
Suyak desired that, the indebtedness reflected in the judgment be dischargeable in bankruptcy, and Creamery desired to avoid the effect of such a discharge. Suyak desired to reform and amend the judgment to conform to the pleadings, while Creamery desired to reform and amend the pleadings to conform to its concept of the proofs. On this record we can see no reason, and none has been suggested by either counsel, why either party’s prayer for reformation and amendment was any more deserving than the other’s.
However, we are satisfied the complaint failed to state facts apprising Suyak of the nature of the claim which the default judgment found had been established, and that the discrepancy between the complaint’s allegations and the default judgment’s findings is of sufficient importance on the practical issue between the parties — the dischargeability of the indebtedness — that the trial judge correctly ruled the default judgment should not have been permitted to stand as originally entered.
The purpose of a complaint is to apprise the defendant of the issues he will be required to meet
and the relief sought. GOB 1963, 111.1
requires the pleader to state the facts with such specific averments as are necessary reasonably to inform the adverse party of the cause he is called upon to defend. To a defendant in such precarious financial straits that voluntary bankruptcy appears to be a desirable alternative, it is vitally important whether a judgment sought against him is discharge-able in bankruptcy.
Where a plaintiff desires a trial judge to make findings in a default judgment affecting the dischargeability of the judgment in bankruptcy, the complaint, as served upon the defendant, must have stated facts supporting the judgment to the extent required by GOB 1963, 111.1. Compare
Harris
v.
Deitrich
(1874), 29 Mich 366;
McMahon
v.
Rooney
(1892), 93 Mich 390, 393;
Colling
v.
McGregor
(1906), 144 Mich 651, 653;
Foster
v.
Talbot
(1932), 257 Mich 489, 492;
Smak
v.
Gwozdik
(1940), 293 Mich 185, 192. See also, 7 Callaghan, Michigan Pleading & Practice (2d ed), § 44.31.
III.
While we agree with the trial judge that the difference between the pleading in the complaint and
the findings in the default judgment obliged him to set aside the default judgment, we disagree with the form of his order and with his refusal to allow Creamery to amend its complaint.
RJA § 2311 first appeared in its present text
as CL 1857, § 4417, and appears to be derived from the revised statutes of 1838. The 1838 provision reads:
“Sec 21.
After
the judgment rendered in any civil action, and [any] defects or imperfections in matter of
form,
found in the record or proceedings in the action may be rectified and amended by the court in which the judgment is rendered, or by the court to which it shall be removed by writ of error, if substantial justice requires it, and
if
the amendment is in affirmance of the judgment.” (Emphasis supplied.) RS 1838, part 3, title 2, ch 8, § 21.
The foregoing language in the 1833 statute was preceded by the following:
“Sec 20. The court in which any civil action is pending, may at any time
before
judgment rendered therein, allow amendments, either in
form or sub-
stance,
of any process, pleading or proceeding in such action, on such terms as shall be just and reasonable.” (Emphasis supplied.) RS 1838, part 3, title 2, ch 8, § 20.
We note that under the 1838 statute, while the power of amendment before judgment related either to “form or substance”, the court could correct only a “matter of form” after judgment. The theme of RJA § 2311 is precisely the same as section 2l of the 1838 statute. Therefore, we conclude from both the history of RJA § 2311 and the ordinary meaning of its language that the power of amendment embodied in RJA § 2311 permits amendment
after
judgment only as to “matters of form”, not those of substance, and then only if the amendment is “in
affirmance of
the judgment” — the power of “reformation and amendment”
under RJA § 2311 is not plenary, is qualified by the foregoing recited limitations, and may be utilized only to correct a “variation in the record” from that which in fact 'occurred in the judicial proceedings.
Suyak did not claim that the judgment entered was not, in fact, the judgment signed, but rather that the judgment entered should never have been signed. The order from which Creamery appeals was entered over the protests of Creamery and was not within the spirit
of RJA § 2311, which protects
the holder of the judgment and contemplates only orders of reformation and amendment “in affirmance of the judgment.” If, as Creamery fears, the consequence of the order
nunc pro tunc
is to make the. judgment dischargeable in bankruptcy, then that order, in its practical effect, was not “in affirmance of the judgment.”
IY.
We next consider whether the “order reforming and amending default judgment
nunc pro tunc”
is authorized by G-CR 1963, 528.3, which provides that' the court may “relieve a party or his legal repre-' sentative from a final judgment” on the grounds — •' we mention only the specific grounds relied upon by Suyak — of “mistake, inadvertence, surprise or excusable neglect”, or “fraud * * * misrepresentation or other misconduct of an adverse party”, or “any other reason justifying relief from the operation of the judgment.”
Rule 528.3 has its origin in the inherent power of a court of general jurisdiction to- correct orders improperly entered.
In exercising such power, courts balance the policy favoring the correction of error and the policy favoring the finality of judgments. On this case’s facts the trial judge was well justified (see part II of this opinion) in relieving Suyak from the default judgment, and his authority to do so under rule 528.3 is clear.
We have considered whether the power set forth in GrCR 1963, 528.3, permitting a trial judge on specified grounds to “relieve” a party from a final judgment, order or proceeding, confers authority to “modify” such a final judgment. There being no relevant Michigan authority, we have surveyed the plethora of cases in which Federal courts have exercised the power conferred by rule 60(b) of the Federal Rules of Civil Procedure (which in relevant part was copied word-for-word into GrCR 1963, 528'.3) and find that the typical Federal court order entered under rule 60(b) is one
vacating
the judgment or order in question. Modification, as distinguished from vacation, of permanent injunctions has with some frequency been directed under rule 60(b); however, the authority for such modification does not depend on court rule.
There seems to be some disagreement on the part of the Federal courts as to the means by which a modification of a noninjunctive final order may be obtained.
V.
In deciding this case it is not necessary to attempt to define the trial judge’s power to
modify
a final judgment or order, or to frame a decree granting relief from a final judgment or order, since no rea
son has been suggested why the parties now before us should not have been permitted and required to litigate the real issue that divides them,
i. e.,
the nature of the indebtedness and whether it is soundly grounded upon facts which make it nondischargeable in bankruptcy.
No reason was stated for the trial judge’s refusal to permit Creamery to amend its complaint, Suyak to answer such amended complaint, and the parties to proceed to a trial of the issues framed by such pleadings. We find nothing in the record which supports the refusal of the trial judge to allow such amendments. Such refusal gave to Suyak more than he would have received had his motion to set aside the default judgment been granted. Indeed, such refusal put Suyak in a better position than had he duly answered the complaint when it was filed and served upon him. In either such case, Creamery could have sought leave to amend the complaint, which “leave shall be freely given when justice so requires.” GOB. 1963, 118.1.
In our view the question before the trial judge was not of the kind obliging us to defer to the trial judge’s judgment. There is no disputed issue of fact on the presented question. There is no reason to believe the trial judge was in a more advantageous position than we to evaluate the situation. There is no difficulty in stating a rule of decision applicable to all similar cases. We find support for this approach in
Noonan
v.
Cunard Steamship Co., Ltd.
(CA 2, 1967), 375 F2d 69, 71.
“If this were truly the type of case where an appellate court must respect the trial judge’s exercise of discretion, we might indeed be troubled in saying, in Judge Magruder’s oft-quoted phrase,
that we had ‘a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.’
In re Josephson
(CA 1, 1954), 218 F2d 174, 182. However, we doubt that to be the appropriate test here; the fact that dismissal under Buie 41(a)(2) usually rests on the judge’s discretion does not mean that this is always so. Several of the most important reasons for deferring to the trial judge’s exercise of discretion — his observation of the witnesses, his superior opportunity to get ‘the feel of the ease’, see
Cone
v.
West Virginia Pulp & Paper Co.
(1947), 330 US 212, 216 (67 S Ct 752, 91 L Ed 849), and the impracticability of framing a rule of decision where many disparate factors must he weighed, see
Atchison, T. & S. F. R. Co.
v.
Barrett
(CA 9, 1957), 246 F2d 846—are in-apposite when a question arising in advance of trial can be stated in a form susceptible of a yes-or-no answer applicable to all cases.”
. Becently a panel of this Court considered a case with a fundamentally identical factual situation, except in that case the trial judge denied the defendant’s motion to vacate the default judgment and granted plaintiff’s motion to amend his complaint to conform to his proofs, without leave to the defendant to answer the amended complaint. In that case this Court, by an order not officially reported, set aside the default judgment and granted the defendant leave to answer plaintiff’s amended complaint.
Where a default judgment, containing findings affecting the dischargeability in bankruptcy of the judgment debt, is entered on the basis of a complaint which does not (as required by GOB 1963, 111.1) state the facts on which the plaintiff relies with such specific averments as are necessary reasonably tt> inform the defendant of the nature of the cause he is called upon to defend, upon a motion for relief
from judgment the ends of justice will' best be' served if the trial judg’e sets aside such judgment, granting the plaintiff leave to amend his complaint (GCR 1963, 118.1) and the defendant leave to answer the amended complaint.
-.Therefore, the default judgment entered on November 19, 1965, as amended April 1, 1966, is set aside. Creamery is granted leave to file an amended complaint and the defendant is granted leave to answer.
Reversed and remanded. Costs to appellant.
Burns and McGregor, JJ., concurred.