Opinion
Docket No. 2,971.
Decided April 25, 1968.
Appeal from Ingham, Coash (Louis E.), J. Submitted Division 2 May, 1967, at Lansing. (Docket No. 2,971.) Decided April 25, 1968.
Complaint by Virginia Whiting, administratrix of the estate of Dina Marie Whiting, against John R. Neuman, M.D., for the wrongful death of her daughter. Defendant's motions for summary judgment and accelerated judgment granted. Plaintiff appeals. Reversed and remanded.
Cicinelli, Mossner, Majoros, Harrigan Alexander, for plaintiff.
Fraser, Trebilcock, Davis Foster for defendant.
Plaintiff, Virginia Whiting, was appointed administratrix of her deceased daughter's estate on March 7, 1966 by order of the Ingham county probate court. On the 24th of March action was filed under the wrongful death act in Ingham county circuit court alleging malpractice on the part of the defendant. Subsequently, it was discovered that neither plaintiff's decedent nor the defendant were residents of Ingham county at the time of death but rather of Eaton county. Upon its own motion the Ingham county probate court revoked the letters of administration granted to the plaintiff. Thereafter plaintiff was appointed administratrix by the Eaton county probate court and she began an identical action in Eaton county circuit court involving the same set of facts, the same parties, and the same cause of action.
See CLS 1961, § 600.2922, as amended by PA 1965, No 146 (MCLA § 600.2922, Stat Ann 1968 Cum Supp § 27A.2922).
On November 10, 1966, several months after the proceedings above had taken place, the trial judge in Ingham county circuit court granted the defendant's motions for summary judgment and accelerated judgment on the grounds that "the court had no jurisdiction over the subject matter of this action inasmuch as there is not now and never has been a party plaintiff having capacity to maintain the within action before this court." From this dismissal of her action in the Ingham county circuit court plaintiff takes this appeal.
See GCR 1963, 117.
See GCR 1963, 116.
Appendix A.
Plaintiff in this appeal still has a viable action pending in the Eaton county circuit court. She has not been aggrieved by her dismissal. See 4 CJS, Appeal Error § 27b(1) p 121: "Appellate review cannot be had where a remedy for the same errors has been sought in the lower court by a pending valid proceeding, but appellate review will not be precluded if the lower court proceeding is void, or is no longer pending."
The case of In re Estate of Trankla (1948), 321 Mich. 478 sets out the case law defining an "aggrieved" party and has been substantially restated in 7A Callaghan's Michigan Pleadings and Practice, § 54.08; appellant must be aggrieved:
"To be entitled to appeal, in addition to being interested in the subject matter of the controversy, one must also be injuriously affected or aggrieved by the judgment or order. To be aggrieved, the determination must in some substantial manner prejudice him in his rights or adversely affect his legal interests, and a party unquestionably is aggrieved by a judgment or order if it operates on his rights in property or bears directly on his interest, but one is not aggrieved by a mere possibility of injury arising from some unknown and future contingency, and there is a strong presumption against possible future grievance where there is nothing to show any state of things which could give rise to any contingent claim which could be presented against appellant thereafter in connection with the order appealed from."
Had the Eaton county case been processed plaintiff might have had a decision on the merits in this case while this appeal was pending. In view of the fact that plaintiff is still "in court" in Eaton county with the identical lawsuit, there is only "a mere possibility of injury" resulting from the Ingham circuit court's action.
Therefore, it should be the order of this court that this appeal be dismissed without prejudice. No costs.
PA 1961, No 236, § 310, as added by PA 1964, No 281, and amended by PA 1967, No 65 (MCLA § 600.310, Stat Ann 1968 Cum Supp § 27A.310): "The court of appeals has original jurisdiction to issue prerogative and remedial writs or orders as provided by rules of the Supreme Court, and has authority to issue any writs, directives and mandates that it judges necessary and expedient to effectuate its determination of cases brought before it."
APPENDIX A
It would appear that the Ingham county circuit court was in error in dismissing plaintiff's action for lack of jurisdiction. Plaintiff was a validly appointed administratrix by order of the Eaton county probate court before the Ingham county circuit court action was dismissed and thus had the capacity to pursue that action. Also, see CL 1948, § 704.53 (Stat Ann 1962 Rev § 27.3178 [304]): "All acts of a fiduciary, as such, before the revocation of his letters, shall be as valid to all intents and purposes as if such fiduciary had continued lawfully to execute the duties of his trust." The circuit court being Michigan's court of general jurisdiction, the Ingham circuit court clearly had the power to hear and decide this case.
"Circuit courts have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state." CLS 1961, § 600.605 (Stat Ann 1962 Rev § 27A.605).
In addition, granting that the administratrix' appointment by the Ingham probate court was invalid for lack of residence, the subsequent valid appointment of the administratrix by the Eaton county probate court "related back" to the time of the decedent's death, Gray v. Ferguson (1891), 86 Mich. 382, 385, and Richards v. Pierce (1880), 44 Mich. 444, 447, and hence validated the administratrix' act in starting the Ingham circuit court action.
Generally, the action must be brought in the county where the cause arose or where the defendant is "established." See CLS 1961, § 600.1621 (Stat Ann 1962 Rev § 27A.1621). But venue is no longer jurisdictional. CLS 1961, § 600.1601 (Stat Ann 1962 Rev § 27A.1601). Therefore improper venue is no longer grounds for dismissal. "No order, judgment, or decree shall be void or voidable solely on the ground that there was improper venue." CLS 1961, § 600.1645 (Stat Ann 1962 Rev § 27A.1645). The only remedy provided for improper venue is a motion for change of venue. See CLS 1961, § 600.1651 (Stat Ann 1962 Rev § 27A.1651). Improper venue is not a jurisdictional defense (CLS 1961, § 600.1601 [Stat Ann 1962 Rev § 27A.1601]), and so is not grounds for a motion to dismiss under GCR 1963, 116. The motion could have been treated as a motion for change of venue, but CLS 1961, § 600.1651 (Stat Ann 1962 Rev § 27A.1651) plainly states that: "An action brought in a county not designated as a proper county may nevertheless be tried therein, unless a defendant moves for a change of venue."
We agree with Judge SULLIVAN that when the Eaton county probate court appointed plaintiff administratrix of her daughter's estate, such appointment related back to the date of her daughter's death and for this reason as well as the fact that such appointment preceded defendant's motion to dismiss this action the Ingham county circuit court erred in dismissing it.
We also agree that only an aggrieved party may properly seek relief from an appellate court, but we believe plaintiff was aggrieved by the order of dismissal. The evil of having simultaneous actions for the same claim can be avoided under the provision of GCR 1963, 116.1(4) by granting defendant's motion to dismiss the action now pending in Eaton county.
Our disagreement with Judge SULLIVAN stems from our conviction that even if we assume (as we believe he does) that the present action in Eaton county (which was begun prior to the commission of the error here complained of) can properly be regarded as seeking a remedy for the "same error," it can in no way be said to deprive us of jurisdiction to review and correct that error.
Although the trial court here was not asked so to consider it, we believe defendant's motion should have been treated as a motion for change of venue and in view of the admitted residences of the parties granted under GCR 1963, 404.
Accordingly we reverse and remand for the entry of such order. No costs.
LEVIN, J., concurred with T.G. KAVANAGH, P.J.