Travelers' Insurance v. Kent Circuit Judge

Blair, J. This is an application for mandamus to require the respondent to vacate an order extending the time within which the Valley City Desk Company might file a motion for a new trial in the case of Travelers’ Insurance Company v. Valley City Desk Company et al. Different phases of the matters embraced in this proceeding have been before this court in Valley City Desk Co. v. Kent Circuit Judge, 139 Mich. 194, and Valley City Desk Co. v. Insurance Co., 143 Mich. 468, to which cases reference is made for a statement of the facts. The granting of a motion for a new trial in this case would be ineffective, unless the default were also set aside, since the new trial would merely be an assessment of damages, and the result must be the same as before. 3 Comp. Laws, § 10604. We do not think it would be competent to procure the vacation of the judgment on motion for new trial and then, having got the judgment out of the way, obtain the opening of the default on the ground that there were no “proceedings taken after default on the strength thereof.” This would result in accomplishing by indirect action what the rule [Cir. Ct. Rule 126] prohibits being secured by direct action. We deem it proper to say, however, that we have not as yet passed upon the question whether the garnishee de [689] fendant’s motion to set aside the default was not filed in time. The judgment against the garnishee defendant was entered on November 21, 1904. On November 23, 1904, the garnishee defendant made his motion to vacate this judgment and set aside the default. At the time of this motion, no judgment had been entered against the principal defendant, and as the record then stood the garnishee defendant was entitled to prevail. Whether the entry of a judgment nunc pro tunc on November 25th, under the circumstances of this case, could affect the legal status of this motion, is a question which we cannot determine until it is properly before us for review upon writ of error, as we held in Valley City Desk Co. v. Kent Circuit Judge, 139 Mich. 194. The writ is granted. Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.