Opinion
Submitted June 22, 1937. (Calendar No. 39,459.)
Decided September 1, 1937.
Appeal from Wayne; Chenot (James E.), J. Submitted June 22, 1937. (Calendar No. 39,459.) Decided September 1, 1937.
Action by Walter H. Domzalski against Mary Guzynski, individually and as administratrix of the estate of Josephine Jasieniecki, deceased. Default judgment for plaintiff against defendant and judgment against garnishee defendant Theophila Sobocinski. Default judgment set aside. Garnishee defendant reviews order denying motion for rehearing of motion to set aside default by appeal in the nature of mandamus. Writ granted.
Frank Selwa and Stanley J. Dixon, for garnishee defendant.
Default judgment, after personal service of summons and appearance of defendant, was regularly entered August 16, 1935. Motion, filed April 21, 1936, to set aside the default and judgment was denied May 4, 1936. Petition for rehearing of motion to set aside default and judgment was filed by defendant May 9, 1936, granted November 21st, and order setting aside the judgment was entered November 23, 1936. Motion by garnishee defendant to set aside the latter order was denied January 4, 1937.
Judgment against garnishee defendant had been entered September 21, 1935. After issue of fieri facias against her, she had paid in full and taken assignment of the principal judgment on May 19, 1936. She prays writ of mandamus to compel the court to vacate the order setting aside the judgment.
Personal service on defendant having been made, proceedings taken after default on the strength thereof, and the motion to set aside the default and judgment not having been made within four months after the default was regularly entered, the order setting aside the judgment was void. Court Rule No. 28, § 4 (1933); Vozbut v. Pomputis, 277 Mich. 212; Zirkaloso v. Wayne Circuit Judge, 246 Mich. 210.
Writ granted, with costs.
NORTH, WIEST, BUTZEL, BUSHNELL, SHARPE, POTTER, and CHANDLER, JJ., concurred.