Bednarsh v. Winshall

364 Mich. 113 (1961)

110 N.W.2d 729

BEDNARSH v. WINSHALL.

Docket No. 50, Calendar No. 48,203.

Supreme Court of Michigan.

Decided September 22, 1961.

Daniel S. Cooper, for defendant.

DETHMERS, C.J.

Defendant appeals from denial of his motion to set aside a default judgment against him in the amount of $11,385.

The judgment was based on a claim for money due in assumpsit. The motion was supported by an affidavit of merits alleging payment, with canceled checks attached as supporting evidence. We think *114 a good showing of a meritorious defense was made, if the affidavit be true. Counteraffidavits were filed to the effect that the payments to plaintiff were not from defendant and were on another account. A serious question of fact was thus presented as to whether defendant did or did not owe plaintiff the amount for which judgment was taken or any part of it.

The showing made in connection with the motion was that defendant was served with summons and declaration. He took them to his attorney. Because the latter had also represented plaintiff he decided to turn them over to another lawyer. This resulted in some confusion as to conducting the defense. The matter came into the hands of defendant's present attorney 1 day after the default judgment had been entered on January 26, 1959. Order of default had been filed on January 14, 1959. Proof of service of summons on defendant was filed on December 22, 1958, just 3 weeks before the order of default and 1 month before default judgment. The motion to set aside the default was filed January 29, 1959, within 15 days after default and 3 days after judgment. We think defendant acted with reasonable care and dispatch, that the minor delay on the part of the defense resulted from confusion in the changing of attorneys and that this was seized upon with undue haste by plaintiff.

In view of the plaintiff's precipitate action, defendant's prompt motion to set aside default and the affidavit of merits showing a meritorious defense, we think it was an abuse of discretion to deny the motion to set aside the default and judgment.

Reversed and remanded for further requisite proceedings. Costs to defendant.

CARR, KELLY, TALBOT SMITH, BLACK, EDWARDS, KAVANAGH, and SOURIS, JJ., concurred.