Glazer v. Silber

Boyles, J. This case involves the construction of Michigan Court Rule No 38 (1945). The precise question is whether, as claimed by the plaintiff, he should have been allowed a voluntary nonsuit of his case without prejudice, instead of the dismissal with prejudice ordered by the lower court. Plaintiff, an attorney, sued the defendants in the common pleas court of Detroit for legal services. After service of process, answers to the declaration *637 were filed by tbe defendants, tbe case was set for trial, and the plaintiff retained counsel to represent him in tbe trial. On tbe day before tbe date set for trial plaintiff called defendants’ counsel requesting consent to an adjournment, wbicb was refused. On tbe date set for trial plaintiff’s counsel appeared in tbe common pleas court and requested an adjournment on bis own account and also because be bad received a call from tbe plaintiff giving reasons why be would be unable to come to court on that date. Defendants objected and tbe court denied tbe request for adjournment, whereupon plaintiff’s counsel, at plaintiff’s suggestion, moved for a voluntary nonsuit. This was objected to by tbe defendants, tbe motion was denied, and the court entered an order dismissing tbe suit with prejudice. Thereupon plaintiff took an appeal to tbe circuit court where the circuit judge who beard tbe matter entered an order affirming tbe order of tbe common pleas court. Tbe plaintiff appeals here. Appellant concedes that the rules of tbe common pleas court do not contain any provision for nonsuit, and points to a rule of said court which provides: “In all matters not herein provided for, or not expressly prohibited or specified by statute, tbe Michigan Court Eules shall govern.” Michigan Court Eule No 38 (1915), applicable to this situation, provides: “Tbe plaintiff may at any time, before answer filed, and on tbe payment of costs, discontinue bis suit by notice of discontinuance filed in tbe cause and giving notice thereof to the defendant or bis attorney. Thereafter be may discontinue, on tbe same terms, only (1) upon filing a stipulation to that effect signed by tbe defendant, or his attorney, or (2) on the order of tbe court or judge made on special motion in wbicb tbe grounds for such discontin *638 nance shall he set forth and which shall he supported by affidavit.” Defendants’ answer having been filed in the instant case, under the above rule the plaintiff was not entitled to a discontinuance merely by filing and giving notice thereof to the defendants and payment of costs. Under the rule, his motion for discontinuance would be granted only upon compliance with one or the other of the 2 conditions described in the second sentence of said rule. No claim is made that a stipulation for discontinuance had been signed, consequently the condition on which the motion of the plaintiff for a voluntary nonsuit must be based, and would be granted, was by an order of the court made on special motion in which the grounds for such discontinuance were set forth, supported by affidavit. We find nothing in the record here to show that any such grounds for a discontinuance had been shown when plaintiff’s attorney moved for a nonsuit without prejudice. Michigan Court Rule No 38 (1945) controls, there being no express statutory provision or specific rule in the common pleas court governing the question. The granting or denial of a nonsuit rests in the sound discretion of the trial court. Reed v. Burton Abstract & Title Co., 344 Mich 375. There was no abuse of discretion in denying with prejudice plaintiff’s motion for a nonsuit. The orders entered in the common pleas court and the circuit court on appeal are affirmed. Pear v. Graham, 258 Mich 161; Shields v. Shields, 319 Mich 316, 321; Bettendorf v. F. W. Woolworth Co., 329 Mich 409. Affirmed. No costs, appellees not having filed a brief in this Court. Dethmers, C. J., and Sharpe, Smith, Reid, Kelly, Carr, and Black, JJ., concurred.