Cook v. Wayne Circuit Judge

Bird, J.

The plaintiff filed his suit in equity to establish and have confirmed in him an easement in the premises of Katherine Dehnert, Emil Dehnert, and William Ortman. The bill was filed on August 13, 1914. The defendants were personally served, and on August 27th they entered their appearance by attorney, and on the same day were served with copies of *20 the bill. The defendants were duly defaulted on December 1, 1914, for failure to respond to the bill, and a decree was filed therein on May 14, 1915. On Januuary 17, 1916, a motion was made to set aside the default. This motion was granted on March 31, 1916, over a year after the default had been entered. Plaintiff now asks this court for a writ of mandamus to compel the trial court to set aside this order, and in support thereof he calls attention to Circuit Court Rule No. 32, subd. 4. That párt of the rule which is material hereto provides that:

“In all cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within six months after such default is regularly filed.”

It is insisted by the relator that, inasmuch as more than six months had expired when the decree and default were set aside, the order is invalid. The default of the defendants appears to have been duly and regularly entered. This was followed by a decree. It is obvious, therefore, that, “Proceedings were taken after default on the strength thereof.” The object of this rule was to fix the time within which a default might be set aside, and it has been repeatedly held that an order setting aside a default after the expiration of six months from its entry was void, and mandamus has issued to compel the vacation of such orders. Petley v. Wayne Circuit Judge, 124 Mich. 14 ( 82 N. W. 666 ); Carpenter v. Judge of Superior Court, 126 Mich. 8 ( 85 N. W. 265 ); Biensteadt v. Clinton Circuit Judge, 142 Mich. 633 ( 105 N. W. 875 ); St. Louis Hoop & Stave Co. v. Wayne Circuit Judge, 155 Mich. 311 ( 118 N. W. 989 ).

But it is argued that the decree was void. This is based upon the fact that Mr. Dehnert was dead when the decree was granted, and no suggestion of the fact *21 had been made upon the record. In view of the fact that his. default had been entered during his lifetime and the further fact that the interest in the premises, out of which the contention grew, was held by himself and his wife by the entireties, we think there is no force to this point. Upon his death his interest became vested in the survivor, and she was a party. Under such circumstances it would be unnecessary to suggest the death of defendant Dehnert upon the record.

The writ must issue, with costs to the relator.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, Brooke, and Fellows, JJ., concurred.