author: Per Curiam. M. J. Kelly, P. J.,

text:
    KUJAWSKI v COHEN
    Docket No. 29981.
    Submitted February 8, 1978, at Detroit.
    Decided May 9, 1978.
    Frances J. Kujawski, as administratrix of the estate of Eugene J. Kujawski, filed a wrongful death action against Edwin Cohen, doing business as J & I Service Station, and General Motors Corporation alleging failure of a truck wheel bearing due to negligent installation by Cohen’s employee and negligence and breach of warranty by a General Motors subsidiary in manufacturing the bearing. The jury returned a verdict against General Motors alone, which appealed. The Court of Appeals held that the trial court erred in excluding evidence relevant to the issue of whether Cohen’s employee had exercised due care and whether the truck was in safe running order and "reversed and remanded for a new trial”, 56 Mich App 533 (1974). Prior to the scheduled retrial General Motors moved the Wayne Circuit Court to declare Cohen an active defendant upon retrial. The trial court, Joseph B. Sullivan, J., denied General Motors’ motion. General Motors appeals by leave granted. Held:

    1. Absent a cross-appeal by plaintiff as to the judgment of no cause of action as to Cohen or a specific appeal by General Motors of the judgment of no cause the judgment is res judicata as to Cohen.
    2. Even if the rule applicable in other jurisdictions that an appellate court may, where the interests of justice require, order a retrial as to non-appealing defendants is followed in Michigan, the Court of Appeals made no such order in the instant case and such a result should not be presumed.
    Affirmed.
    M. J. Kelly, P. J., concurred in the result and would go further and hold that a judgment in favor of one defendant cannot be reversed upon successful appeal by a codefendant who has received an unfavorable verdict at trial.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error §§ 951-952.
    Modern status of doctrine of res judicata in criminal cases. 9 ALR3d 203.

       Vacation or setting aside of judgment as to one or more of multiple parties against whom rendered as requiring its vacation as to all. 9 ALR3d 203.

       5 Am Jur 2d, Appeal and Error § 948 et seg.

      Opinion of the Court
    1. Appeal and Error—Judgment—Res Judicata—Reversal—Codependant.
    A judgment in favor of one codefendant is res judicata in favor of that codefendant where the other codefendant has had a judgment against him reversed on appeal, absent a cross-appeal by the plaintiff or a specific appeal by the appealing codefendant.
    Concurrence by M. J. Kelly, P. J.
    2. Appeal and Error—Judgment—Reversal—Codependant.

      A judgment in favor of one defendant may not be reversed upon a successful appeal by a codefendant who has received an unfavorable verdict at trial.

      Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P. C., for defendant Cohen.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by William P. Cooney and John P. Jacobs), for defendant General Motors.
    Before: M. J. Kelly, P. J., and T. M. Burns and Bronson, JJ.
   Per Curiam.

This is an appeal by leave granted from a denial of General Motors’ motion for an order decreeing Edwin Cohen, d/b/a J & I Service Station, to be an active defendant in the retrial of a case remanded from this Court. See Kujawski v Cohen, 56 Mich App 533; 224 NW2d 908 (1974).

Plaintiff brought a wrongful death action against Cohen and General Motors alleging the failure of a truck wheel bearing due to negligent installation by Cohen’s employee and negligence and breach of warranty by a General Motors subsidiary in manufacturing the bearing. The jury returned a verdict against General Motors of $315,000 and found no cause of action against Cohen.

General Motors alone appealed. On appeal, this Court held that the trial court had erred in excluding evidence relevant to the issue of whether Cohen’s employee had exercised due care and whether the truck was in safe running order. The Court held:

"Because the evidence excluded was pivotal to one of GM’s defenses and would also have been important in assessing the credibility of adverse witnesses and the validity of their claims, GM is entitled to an opportunity to introduce such evidence at a new trial.” Id. 541.

The case was "reversed and remanded for new trial”.

In the present appeal, General Motors contends that this language had the effect of reversing the no cause of action verdict for Cohen and reinstating him as an active defendant.

We believe Whinnen v 231 Corporation, 49 Mich App 371; 212 NW2d 297 (1973), controls the issue before us. Whinnen was a slip-and-fall case. Plaintiff sued the municipality, abutting property owner and lessee of contiguous property. The jury returned a verdict of $11,000 against the owner and no cause of action against the municipality and lessee. Only the owner appealed; no cross-appeal was filed. This Court, finding evidentiary errors which could have affected the liability of both the lessee and owner, reversed as to the owner only:

"We vacate the judgment entered upon the verdict of the jury and remand to the trial court for a new trial as to defendant-appellant 231 Corporation. Absent a cross-appeal by plaintiff as to the judgment of no cause as to the other two named defendants, or a specific appeal by this appellant of the no cause judgments as to its co-defendants in the trial court, we hold those judgments are res judicata as to the City of Hancock and Metropolitan Life Insurance Company. We remand for a new trial as to appellant 231 Corporation only.” 49 Mich App at 378-379.

See, also, Vorrath v Garrelts, 49 Mich App 142; 211 NW2d 536 (1974).

General Motors relies on decisions from other jurisdictions holding that an appellate court may, when the interests of justice so require, order a retrial as to non-appealing defendants. We need not decide whether we will follow such rule, however, for even assuming that rule has validity in Michigan, we see nothing in this Court’s opinion in the prior appeal indicating that the Court intended to order retrial as to Cohen. Retrial as to a non-appealing party, under the rule advanced by General Motors, may be ordered, but it should not be presumed. As the Court did not order that Cohen be a party to the retrial, we hold that he is not.

In addition, General Motors has failed to demonstrate the injustice of a new trial without Cohen as a party. General Motors will not be precluded from raising its main defense: that the cause of the accident is attributable to another’s negligence, not any breach of warranty or negligence by General Motors. See, e.g., Love v Brumley, 30 Mich App 61; 186 NW2d 19 (1971).

Affirmed. Costs to defendant-appellee.

M. J. Kelly, P. J.,

(concurring). I am unable to resist the temptation to comment that this case is an embarrassment to the administration of civil justice in this state. A verdict was entered in June of 1971 in the trial court and has not as yet been finally disposed of yet thrice viewed by this Court and once by the Supreme Court by its denial of leave. The issue presented should have been disposed of peremptorily on simple motion for rehearing, either timely or delayed, and a scandalous four-year hiatus obviated.

General Motors says Cohen is a party to the appeal because he was served with the claim of appeal designating him an appellee, has been served with all subsequent pleadings and is a necessary party on retrial not only because he is the real culprit but because his attorney manufactured the error for which reversal was mandated.

Cohen says General Motors had to serve him with the claim of appeal because the court rule requires it. He says in order for him to be a party he would have had to file an appearance and participate in the appeal which he of course declined to do because he won below. There are really two questions presented by this appeal. The first has been answered by the majority opinion, that is, that it is the law of this case that the original verdict and judgment was reversed and remanded for new trial only as to General Motors. The second question is: May a judgment in favor of one defendant be reversed upon a successful appeal by a codefendant who had received an unfavorable verdict at trial? We are not helped by the briefs on this issue but I submit that in Michigan the answer is no.

In Copeman v Takken, 262 Mich 674; 247 NW 778 (1933), a contract action, judgment was rendered in common pleas court against the husband but in favor of the wife. The husband appealed; the wife of course did not. Plaintiff did not appeal as to the wife. The Supreme Court held that the wife was not an appellant and that the circuit court was without jurisdiction to order reversal as to her. Therefore the common pleas court verdict of no cause of action was reinstated as to the successful codefendant wife.

In Ray v Knowles, 267 Mich 456; 255 NW 295 (1934), an action was brought for assault and battery committed by two defendants. The defendants were not exactly acting in concert; the one had assaulted the plaintiff and beaten him about the head and was sitting on him for some period of time before the second assailant came up and administered a blow upon the head. The first assailant received a no cause at trial; the second was held liable for money damages. There was no question about the first assailant having inflicted injuries; he admitted it. There was physical evidence corroborated by a doctor’s testimony and the plaintiffs testimony. The case is at least as strong as the case at bar for retrial as to both defendants. It would appear that some injuries would go uncompensated otherwise. But the plaintiff did not appeal as to the first tortfeasor and the Court held:

"We find no occasion to determine whether the verdict was defective in not making any return as to [the first tortfeasor]. [He] is not complaining, and [the second tortfeasor] may not make it his grievance.” 267 Mich at 458.

The case is obviously squarely in point. The only weakness is that it has never been cited.

In Meier v Holt, 347 Mich 430, 446; 80 NW2d 207 (1956), there was a judgment against two successive tortfeasors. Although the case is cluttered with three opinions, the two prevailing opinions reversed as to the second tortfeasor Holt, but since the judgment against Caswell had not been appealed the Court held:

"The present judgments as against defendant Caswell should not of course be disturbed.”

American Jurisprudence states the rule to be:

"The reversal on appeal as to one codefendant against whom a judgment was rendered does not affect a judgment or verdict rendered in favor of the other codefendant as to whom no appeal was taken.” 5 Am Jur 2d, Appeal & Error, § 951, p 379.

It appears that the reference to no appeal being taken refers to the adverse party which in this case would be the plaintiff. For a case to the contrary see Galligan v City of Waterbury, 99 Conn 256; 122 A 119 (1923). There the plaintiff sued a city and a fuel seller for injuries resulting from a defect caused by a coal hole in a sidewalk. The verdict was in favor of the plaintiff and against the municipality only, the coal seller obtaining a no cause of action. On appeal by the city a new trial was granted as to both defendants, not as to the city alone. This leads me to the case relied upon in the majority opinion, Whinnen v 231 Corporation, 49 Mich App 371, 379; 212 NW2d 297 (1973). I am at a loss to explain Justice O’Hara’s reference in that case to a "specific appeal” in his closing paragraph. The opinion states:

"Absent a cross-appeal by plaintiff as to the judgment of no cause as to the other two named defendants, or a specific appeal by this appellant of the no cause judgments as to its co-defendants in the trial court * * *

I would, presume for purposes of this appeal that General Motors’ attorneys have done all in their power to specifically appeal the no cause judgment as to its codefendant. I would further say that it is all for naught if my view of the law as briefly reviewed above is correct. There is no hint of subterfuge here, no claim of hidden settlement, collusion, or unworthy connection between Cohen and Kujawski. If there were and it were specifically addressed, I would not hesitate to find authority in GCR 1963, 820.1(7) for reversal and remand as to Cohen also on the theory that the court had been misled or fraud tainted the proceedings requiring extraordinary relief.

Having addressed these questions on my own the parties are in an advantageous position to petition for rehearing if I have blundered because we will be all too eager to set these matters straight before publication. If I could prevail upon one of my colleagues to,, sign this concurrence the publication of this opinion would then stand for the proposition that Justice O’Hara’s dictum about specific appeals as to the codefendants is just that, dictum, and the black letter law in this state is that the reversal on appeal obtained by one codefendant against whom a judgment was rendered does not affect a judgment rendered in favor of another codefendant as to whom no appeal was taken by the plaintiff and no cross-claim had been brought below.

       No claim of appeal or cross-appeal against Cohen was filed by-plaintiff. See GCR 1963, 807.1. No cross-claim was filed by General Motors against Cohen. In this situation, there was no appeal of the no-cause-of-action verdict for Cohen on plaintiff’s claim versus Cohen. General Motors could appeal only the jury verdict against it in favor of plaintiff, even though Cohen was designated "appellee” by General Motors on documents filed with this Court and served on Cohen.

        See, e.g., Isay v Cameron, 229 So 2d 916 (Ala 1969). See, generally, 166 ALR 563.

         See GCR 1963, 820.1(7).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v GLOVER
    Docket No. 30999.
    Submitted March 14, 1978, at Lansing.
    Decided May 9, 1978.
    Leave to appeal applied for.
    Grant G. Glover was convicted of one count of first-degree felony murder and two counts of assault with intent to commit murder in Shiawassee Circuit Court, Peter J. Marutiak, J. At trial, after the selection of the jury but prior to the presentation of any evidence, defense counsel learned that one of the jurors was acquainted with an investigative officer who was to testify. An in camera voir dire of that juror was held with the trial judge, prosecutor, defense counsel and defendant present, wherein the juror explained the nature of the acquaintance, which was that the officer was formerly employed by the juror’s parents and had resided at their farm where she saw him on her occasional visits, and the juror assured the court that it would in no way influence her determination of the case. At the conclusion of the trial the juror greeted the officer with an embrace. Also at trial the prosecution, over defense objection, introduced a video taped deposition of one of the victims taken at the hospital where he was confined for treatment of his injuries. Defendant appeals alleging juror bias and misconduct, that the hospital setting made the video taped deposition unduly prejudicial and that the deposition procedure specified in the court rules was not followed. Held:

    1. The trial judge was in a superior position to observe the demeanor of the juror at voir dire and did not err in denying a new trial based on juror misconduct where the juror affirmed her impartiality in the voir dire examination.
    2. The procedures outlined in the court rule regarding video tape depositions are to assure the substantive integrity of the depositions; deviations from that procedure do not form a basis for contending prejudicial error in the absence of some allegation challenging that integrity.

      References for Points in Headnotes

       47 Am Jur 2d, Jury §§ 198, 200, 210.
    Relationship of juror to witness in civil case as ground of disqualification. 85 ALR2d 851.

       23 Am Jur 2d, Depositions and Discovery § 59.
    Recording of testimony at deposition by other than stenographic means under Rule 30(b)(4) of Federal Rules of Civil Procedure. 16 ALR Fed 969.
    Use of videotape to take deposition for presentation at civil trial in state court. 66 ALR3d 637.

      Affirmed.
    1. Jury—Misconduct op Juror—Voir Dire Examination.
    A trial judge, who was in a superior position to observe the demeanor of a juror on voir dire, does not err in denying a motion for new trial on the ground of juror misconduct where the juror admitted knowing an investigative officer who would testify at trial and who was formerly employed by and resided at the farm of the juror’s parents, and where the juror unequivocally disavowed that such an acquaintance would influence her determination of the case.
    2. Appeal and Error—Court Rules—Depositions—Video Tape Depositions.
    The purpose of the court rule outlining procedures to be followed in taking video tape depositions is to assure the substantive integrity of the deposition and deviation from that procedure will not form a basis for contending prejudicial error, absent some allegation challenging that integrity (GCR 1963, 315).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gerald D. Lostracco, Prosecuting Attorney, for the people.

      Reid & Reid, P. C. (by Joseph D. Reid and Lawrence J. Emery), for defendant.
    Before: Bashara, P. J., and M. J. Kelly and Allen, JJ.
   Per Curiam.

Defendant appeals his conviction by a jury of first-degree felony murder, MCL 750.316; MSA 28.548, and two counts of assault with intent to murder, MCL 750.83; MSA 28.278. Evidence was introduced by the prosecution to show that the charges arose from the perpetration of a larceny by defendant and his wife.

While stopped at a gas station, defendant’s wife went into the station and took money from the cash register. In their attempt to escape, defendant and his wife were subdued by the station owner. He took them back into the station and telephoned the sheriffs office for assistance.

Other persons had gathered inside the station as a result of the disturbance. Before the sheriff arrived, defendant obtained a gun from his wife. According to the testimony of those in the station, defendant displayed the weapon and threatened to use it if anyone attempted to stop his escape. Unfortunately, someone made such an attempt. The resulting gunfire left one person dead and two others wounded.

Defendant contends that he should not have been bound over for trial because there was insufficient evidence presented at the preliminary examination as to his intent to kill. It is unnecessary to entangle ourselves in the differing perspectives of this Court on the mens rea element of felony murder. We find that the foregoing witness testimony as to defendant’s demeanor at the station, which was presented at the preliminary examination, was sufficient to establish the requisite elements of the charge under either People v Till, 80 Mich App 16; 263 NW2d 586 (1977), or People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976). See People v Paille #2, 383 Mich 621; 178 NW2d 465 (1970), People v Carr, 370 Mich 251; 121 NW2d 449 (1963).

After the selection of the jury, but prior to the presentation of any evidence, defense counsel learned that one of the jurors was acquainted with an investigating officer who was to testify at trial. A voir dire of that juror was held in camera with the prosecutor, defendant, and defense counsel present. The juror explained the nature of that acquaintance and unequivocally disavowed that it would influence her determination of the case. Defense counsel expressed his satisfaction in allowing the juror to continue as a member of the jury.

At the conclusion of the trial the juror greeted the officer in question with an embrace. Thereafter, defendant made a motion for new trial on the grounds of juror misconduct, which was denied. Defendant claims that the motion should have been granted, since his right to a jury trial was prejudiced by the participation of a biased juror.

Claims of juror misconduct or bias are entitled to the strictest scrutiny, because of the significant character of the right to trial by an impartial jury. Even against such a standard, however, we are unable to discern any impairment of this valuable right under the instant circumstances. The testifying officer was formerly employed and resided at the farm of the juror’s parents. She saw him only on the occasion of visits to her parents’ home. The juror’s affirmation of her impartiality leads us to conclude that the trial judge, who was in a superior position to observe her demeanor on voir dire, made a proper ruling. See United States v Russo, 480 F2d 1228 (CA 6, 1973), cert den, 414 US 1157; 94 S Ct 915; 39 L Ed 2d 109 (1974).

The testimony of one of the assault victims was introduced at trial by means of a video taped deposition taken at the hospital where the witness was confined for treatment of his injuries. Defendant objected to its admission on the grounds that the hospital setting made it unduly prejudicial. The claim of undue prejudice and irregularities in the deposition procedure specified in GCR 1963, 315 are urged on appeal.

Notably, defendant does not contend that the deposition contained inaccuracies or alterations or that it introduced inadmissible material into evidence. Consequently, we will not find it to be inadmissible merely because the procedures outlined by the court rule were not followed with absolute precision. Those procedures are designed to assure the substantive integrity of the deposition and will not form a basis for contending prejudicial error, absent some allegation challenging that, integrity.

Here, the defendant and defense counsel were present at the taking of the deposition. The objections made during the deposition were ruled upon by the trial court, and inadmissible material was excluded. As to the hospital environment, the trial court concluded that any resulting prejudice was significantly outweighed by the substantive value of the testimony and the importance in affording the jury an opportunity to observe the witness’s demeanor. We do not find an abuse of discretion in that ruling.

Defendant’s remaining contentions warrant no further discussion than to state that they are without merit on the basis of the record presented.

Affirmed.


text:
    SECHLER v VanHOEY
    Docket No. 77-408.
    Submitted February 16, 1978, at Lansing.
    Decided May 9, 1978.
    Mary E. Sechler filed a complaint against Clifford J. VanHoey for damages for injuries sustained in an automobile accident. After her attempts at personal service proved unsuccessful she made a motion to allow substitute service of process. The Washtenaw Circuit Court, William F. Ager, Jr., J., entered an order permitting substitute service by (a) certified mail on the Michigan Secretary of State, (b) certified mail on the defendant at his last known address, (c) certified mail on the insurer of the defendant on the date the accident took place, and (d) by publication. The plaintiff thereafter complied with the order permitting such substitute service. Defendant appeared specially seeking to quash the service of process and dismissal of the action through a motion for accelerated judgment. An order granting the defendant’s motion for accelerated judgment was entered dismissing the action on the ground that the defendant was not properly served. Plaintiff appeals. Held:

    1. The case is remanded to the trial court to receive evidence and make findings concerning the plaintiffs claim that the defendant received actual notice.
    2. If the defendant received actual notice then service in this case was unquestionably valid since such personal service is a sufficient basis for personal jurisdiction over the defendant in this matter and the service took place within the 180-day time limit required by court rule.
    3. If the defendant did not receive actual notice then the order of dismissal is to be affirmed since the trial court did not err reversibly in ruling that, on the facts of the case, the method of service used was not reasonably calculated to give defendant actual notice of the proceedings.

      References for Points in Headnotes

       62 Am Jur 2d, Process §§ 65-68.

       8 Am Jur 2d, Automobiles and Highway Traffic §§ 849, 852.
    62 Am Jur 2d, Process § 79.
    Who is subject to constructive or substituted service of process under statutes providing for such service on nonresident motorists. 53 ALR2d 1164.

      Remanded for further proceedings consistent with the opinion.
    1. Process—Substitute Service—Purpose—Actual Notice—Court Rules.
    The purpose behind the court rule regarding a court’s discretion in allowing substitute service of process is to allow the judge to order service by substitute means if those means are reasonably calculated to provide actual notice to the defendant (GCR 1963, 105.8).
    2. Process—Substitute Service—Public Policy—Requirements— Court Rules.
    As a matter of public policy courts want to avoid the overuse of substituted service of process and the default judgment it can cause, therefore, two requirements were inserted in the court rule regarding a court’s discretion in allowing substitute service: the threshold requirement that service cannot be reasonably made under the other rules, and second, that the judge, in the exercise of his discretion, finds that substitute service is warranted and that the proposed method of service is reasonably calculated to give actual notice (GCR 1963, 105.8).
    3. Process—Substitute Service—Threshold Requirements—Automobiles—Personal Service—Court Rules.
    The threshold requirement of the court rule regarding substitute service, that service cannot be reasonably made in a manner provided for under the other rules, was satisfied in an action for damages for injuries sustained in an automobile accident where the record shows that personal service was attempted under the only other applicable court rule and that service was unsuccessful despite diligent efforts (GCR 1963, 105.8).
    4. Process—Avoidance by Defendant—Substitute Service— Court’s Discretion—Court Rules.
    Consideration of the fact that defendant is avoiding service of process is proper when a judge is exercising his discretion in deciding whether to permit substitute service under the court rule regarding such service, however, this factor is only indirectly relevant to the resolution of the threshold issue of whether service can reasonably be made in a manner provided for under the other rules and is not a separate distinct requirement (GCR 1963, 105.8).

      5. Process—Substitute Service—Due Process—Actual Notice— Court Rules.
    Due process requires that the method of substitute service ordered by a court pursuant to the court rule regarding such service be reasonably calculated to give the defendant actual notice of the proceedings (GCR 1963, 105.8).

      Collins & McCormick, for plaintiff.

      Hooper, Hathaway, Fichera, Price & Davis, for defendant.
    Before: Danhof, C. J., and Bronson and N. J. Lambros, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

This case involves a claim for injuries resulting from an automobile accident which occurred on March 3, 1973. On December 22, 1975, plaintiff filed her complaint and on January 15, 1976, she made a motion for substitute service under GCR 1963, 105.8, stating that she was unable to locate and serve defendant personally despite good faith efforts. On February 24, 1976, the court entered an order permitting substitute service by (1) mailing a copy of the summons and complaint by certified mail to the Secretary of State, (2) mailing the same to defendant’s address in Southfield, Michigan, (3) publishing a notice for four days in the Detroit Free Press, and (4) mailing copies of the summons and complaint to the Michigan agent for service of process of Aetna Life & Casualty Company, the insurer of defendant on the date the accident took place. On March 22, 1976, defendant appeared specially seeking to quash the service of process and a dismissal of the action. On January 20, 1977, dismissal was ordered on the ground that defendant was not properly served. In his opinion, the trial judge stated that he found that the circumstances present in this case did not meet the threshold requirements for the use of GCR 1963, 105.8 and that the method of service ordered was not reasonably calculated to give defendant actual notice. Plaintiff appeals claiming that the service of process was valid under GCR 1963, 105.8.

The purpose behind GCR 1963, 105.8 is to allow the judge, in the exercise of his discretion, to order service by substitute means if those means are reasonably calculated to provide actual notice to the defendant. The text of the rule establishes as a threshold requirement that service cannot be reasonably made in a manner provided for under the other rules. In State Board of Education v von Zellen, 1 Mich App 147, 157; 134 NW2d 828 (1965), the Court stated that, "It appears from the language of the court rule that the discretion of the court is activated by a 'showing to the court that service of process cannot reasonably be made in the manner provided for under other rules’ ”. In the case at bar, the record shows that personal service was attempted under GCR 1963, 105.1 but was unsuccessful despite diligent efforts. Thus, the threshold requirement was satisfied. The trial judge, in his opinion, found that service under GCR 1963, 105.8 was not authorized since there was no showing that defendant was attempting to evade service or had taken action which prevented personal service. The holding in Felix v Felix, 47 Mich App 744; 209 NW2d 871 (1973), dees not require such a finding before the judge is permitted to exercise his discretion under GCR 1963, 105.8. In Felix, supra, plaintiff had not attempted to serve defendant under the provisions of other applicable rules. Therefore, plaintiff had not shown that service could not reasonably be made in a manner provided for under the other applicable rules as required by GCR 1963, 105.8. In the instant case, plaintiff has attempted service under the only other applicable rule, GCR 1963, 105.1, and she was unable to serve defendant as provided for by that rule.

While consideration of the fact that defendant is avoiding service is proper when the judge is exercising his discretion in deciding whether to permit substitute service, this factor is only indirectly relevant to the resolution of the threshold issue of whether service can reasonably be made in a manner provided for under the other rules. It is not a separate, distinct requirement. In promulgating GCR 1963, 105.8, the Supreme Court was not only concerned with making substitute service available in the proper situation but also with limiting its availability to the proper situation. As a matter of public policy, the courts want to avoid the overuse of substitute service and the default judgment it can cause. Certain requirements were inserted into the rule to fulfill this goal. One such requirement is that service cannot be reasonably made under the other rules. Another is that the judge, in the exercise of his discretion, finds that substitute service is warranted and that the proposed method of service is reasonably calculated to give actual notice. Abuses of the use of this rule are to be prevented primarily by entrusting this matter to the trial court’s discretion. The threshold requirement was not intended to eliminate all these problems. Rather, a two-step protective process was created with the primary reliance being placed on the last step: the judge’s exercise of his discretion. Consequently, there is no justification for limiting the availability of GCR 1963, 105.8, by requiring as a threshold requirement that defendant was avoiding service. It is sufficient if service could not reasonably be made under the other applicable rules.

Since the facts in this case meet the threshold requirements for the use of GCR 1963, 105.8, and plaintiffs attempts to serve defendant complied with the order of substitute service, the only remaining issue is whether the method of service ordered was "reasonably calculated to give [defendant] actual notice of the proceedings”. This requirement was inserted into the rule to preserve it from due process challenges, see 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 113. The validity of the service depends on whether it satisfies this due process requirement.

Initially, we note that plaintiff in her brief on appeal alleges that defendant received actual notice of the suit via certified mail on March 4, 1976. In support of this allegation, plaintiff offers to produce a certified mail receipt signed by defendant on March 4, 1976, showing that defendant received a copy of the summons and complaint. This evidence was not presented to the trial judge and was not considered by him. Plaintiff explains her failure to produce this receipt on the grounds that it was inadvertently misfiled. Due to the importance of whether plaintiff, in fact, received this notice to the resolution of this issue, we are remanding this case to the trial court so that the trial judge can receive evidence and make the necessary findings concerning this fact.

If defendant did receive actual notice, then the service in this case is unquestionably valid under the due process standard, Hess v Pawloski, 274 US 352; 47 S Ct 632; 71 L Ed 1091 (1927), Lawn v Franklin, 328 F Supp 791 (SD NY, 1971), and the rule. It was a sufficient basis for personal jurisdiction over the defendant in this matter. Service of process took place within the 180-day time limit as required by GCR 1963, 102.4 and therefore, the suit should not have been dismissed, see Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971). If the trial court finds that defendant did not receive actual notice, as alleged, then the order of dismissal is affirmed since the trial court did not err reversibly in ruling that, on the facts of this case, the method of service used was not reasonably calculated to give defendant actual notice of the proceedings.

Remanded for further proceedings consistent with this opinion.

       Analytically, the issue of whether the mode of service is reasonably calculated to give defendant actual notice can be determined from the facts presented to the trial court when it enters an order providing for substitute service. The "reasonableness” of the attempt can be determined independently of whether defendant actually received notice. However, when the courts are in a position to know that defendant did, in fact, receive notice, they normally do not ignore this fact but, rather, it is a factor taken into account in determining whether service was proper.


text:
    CLINTON COUNTY v AMERICAN BANK & TRUST COMPANY
    Docket Nos. 77-413, 77-457.
    Submitted February 8, 1978, at Detroit.
    Decided May 9, 1978.
    Leave to appeal applied for.
    In 1972, the Clinton County Department of Public Works was accepting bids for the construction of the DeWitt Township Sanitary Sewer Project, Phases I and II. Lowell C. Smith, doing business as Smith Engineers & Contractors, submitted the lowest bid. The contract was awarded to Smith Engineers & Contractors, despite the fact that prior to the date of the award Mr. Smith informed the board of the Clinton County Department of Public Works that he had made a mistake in preparing his bid. Smith Engineers & Contractors refused to perform under the contract. The Department of Public Works commenced a breach of contract action against American Bank & Trust, as executor of the estate of Lowell C. Smith, who had died subsequent to the awarding of the contract, and against the American Casualty Company of Reading, Pennsylvania, the issuer of a performance bond which had accompanied the bid by Smith Engineers & Contractors. Clinton Circuit Court, Leo B. Bebeau, J., entered judgment for plaintiff for the amount of the performance bond. Defendants appeal. Held:

    The trial court should have allowed defendant Smith to withdraw from the contract since the board had chosen to try to take advantage of the mistake after Mr. Smith had given notice of the mistake and the intention to rescind. This also relieves the surety of its liability under the contract.
    Reversed.
    1. Contracts—Equity—Mistake—Lack of Gross Negligence—Status Quo.
    Equity will interfere, in its discretion, to prevent an intolerable injustice in a contractual relationship where a mistake is of so fundamental a character that the minds of the parties in fact have never met, or where an unconscionable advantage has been gained by mere mistake or misapprehension and there was no gross negligence on the part of the party making the mistake, either in falling into the error or in not claiming redress sooner, and no intervening rights have accrued and the parties may still be placed in status quo.

      References for Points in Headnotes

       13 Am Jur 2d, Cancellation of Instruments §§ 31, 33, 34, 37.
    17 Am Jur 2d, Contracts § 143.

       13 Am Jur 2d, Cancellation of Instruments § 32.
    17 Am Jur 2d, Contracts §§ 146,485.

      2. Contracts—Mistake—Unilateral Mistake—Rescission op Contract—Reformation op Contract.
    A mistake on one side in a contractual relationship may be grounds for rescinding a contract, but not for reforming it.

      Maples & Wood, for plaintiff.

      Frank X. Fortescue, P. C., for defendants.
    Before: N. J. Kaufman, P. J., and D. E. Holbrook, Jr. and D. F. Walsh, JJ.
   Per Curiam.

Plaintiff brought this breach of contract action on March 8, 1973, based on defendant Smith’s refusal to perform under a contract awarded to him by plaintiff. Damages sought were $550,796.83, the difference between Smith’s low bid and the next lowest bid. Accompanying the original bid was a performance bond issued by defendant American Casualty Company of Reading, Pennsylvania in the amount of $91,277.77 (5% of the Smith bid). On January 25, 1977, after a non-jury trial, judgment was entered in plaintiff’s favor for $91,277.77. Defendants appeal.

In 1972, plaintiff was bidding the DeWitt Township Sanitary Sewer Project, Phases I and II. Plaintiff advertised for bids for the construction of this sewer system pursuant to certain specifications drawn by plaintiff’s engineering consultant firm, Mick and Rowland of Angola, Indiana. Defendant Smith responded. Notice to bidders was published that bids would be opened on March 20, 1972.

Bids were in fact opened on March 30, 1972, and read by representatives of Mick and Rowland. Present at the bid opening were various members of the Board of Clinton County Department of Public Works, employees of the board, and on behalf of defendant, Smith Engineers & Contractors, the General Superintendent, Horace Jasman, and the Office Manager-Secretary, Shirley Wesley.

The bids that were opened appeared as follows:

1. Forsberg, Inc. $3,561,707.05

2. Barnhart Construction Co. 3,044,375.10

3. John Lango 3.110.000. 00

4. Parsons 2,994,226.80

5. Fraser 2.997.903.00

6. Bay Construction Company 2.875.100.00

7. Delta Construction Company 2.788.000. 00

8. Nelson 2.702.712.00

9. Fisher 2.582.707.00

10. Dunnigan 2.567.481.00

11. Ackron 2.380.647.00

12. DeWitt 2,376,352.33

13. Smith 1,825,555.50

The bid openings reflected that defendant Smith’s bid was the lowest bid opened and was $550,796.83 lower than the next lowest bid. It should be noted that the third lowest bid of Ackron was only $4,294.67 higher than DeWitt’s. There were no disputed facts regarding the bid opening, the bids as submitted, nor that the bid of defendant Smith was the lowest bid presented. Further, it is not disputed that defendant Smith was unaware of any error in his bid prior to the opening.

However, defendant-appellant surety contends on appeal, as below, that Mr. Smith properly notified plaintiff of an error in the bid, prior to the award of the bid on April 6, 1972. It is admitted that there was no written notification but defendant-appellant surety claims that Mr. Smith attempted to inform plaintiff of his error by a telephone conversation to Mr. Dale Chapman, Chairman of the Board, as soon as he discovered the error. Mr. Jasman claims he overheard the conversation. Mr. Chapman does not recall any such conversation.

Defendant-appellant surety further claims that Mr. Smith made a subsequent call on April 2, 1972, to Mr. Mick at his home in Indiana. In his deposition, Mr. Mick remembered receiving a telephone call. However he claims that Mr. Smith did not indicate any error in his calculations and made no indication of his desire to rescind the bid.

There is no dispute that an informal meeting was held on April 3, 1972, in Dale Chapman’s office; in attendance were Richard Mick, Lowell Smith, Dale Chapman, Paul Nobis and Bob Eldridge. Of those in attendance, testimony was taken and placed on the record of all but Lowell C. Smith, now deceased.

There is no question that Mr. Smith appeared at the gathering and did make mention of a possible mistake in his bid. What mention was made by Mr. Smith, and in what manner it was mentioned, is factually disputed. Messrs. Chapman, Nobis and Eldridge all testified that Mr. Smith exhibited a single adding machine tape, apparently to support an alleged error in his bid. All of the parties indicated that they did not personally view the tape. All parties further indicated the tape was not explained, nor expanded upon in any fashion by Mr. Smith, and that Mr. Smith made no mention at that time that the alleged error was due to his leaving out the restoration process, in its entirety, from his calculations. All parties agreed that at this informal meeting no attempt was made by Mr. Smith to rescind his bid. No minutes were taken of the informal meeting.

The bid was formally awarded at the board meeting of April 6, 1972. None of plaintiffs witnesses have any independent recollection of what transpired at that meeting. The minutes themselves do not purport to be a verbatim transcript but rather are a summary of notes made by the secretary to the board.

The April 6 minutes, Exhibit 1 at trial, indicate the following, in part:

"Mr. Chapman then presented a number of objections to accepting the low bid of Smith Engineering Co. on Phase II and asked for consideration of the matter of acceptance or rejection of the bid. Mr. Mick interjected the thought that Mr. Smith might very well accept the contract at his low bid citing the fact that the overall average per foot price as bid is $17.16 which, in his opinion, is a legitimate price. The question of the legitimacy of the bid bond was then raised and it was the expressed opinion of both attorneys present that the bond, as offered, could be enforced. After some further discussion on the matter, the following motion was offered by Member Nobis, supported by Member Chamberlain:
" 'Resolved That:
1. The contract for construction of Phase II, Clinton County Sanitary Sewage Disposal System No. 1, Township of DeWitt, be awarded to Smith Engineering and Contractors in accordance with the bid received from said contractor on 30 March 1972.
2. The contract shall not become effective until the proceeds from the sale of the bonds for this project have been received by the Department of Public Works and until it shall have given the contractor notice to proceed with performance of the contract.
3. The contract shall be submitted to the contractor for signature immediately.
A roll call vote gave the following results:
3 members voted 'aye’
1 member was absent
0 members voted 'nay’
The motion was declared to be carried by the Chairman.”

A number of other matters were disposed of. Then, the minutes relate:

"Upon return to the meeting, Mr. Smith entered the room and Mr. Green at once informed him that the Board had awarded him the contract at his bid price presented at the letting held on 30 March 1972. Mr. Smith countered by asking Mr. Green if the Board or he had been informed of any variances in the bids and was told that no significant differences had been noted other than might occur in any letting of bids. The Chair then asked Mr. Smith if he had any questions about the contract offered. Mr. Smith replied he thought he had raised a legitimate question concerning his bid at an informal meeting held in Mr. Chapman’s office on the afternoon of Monday, 3 April 1972 which meeting was attended by Mr. Chapman, Mr. Nobis, Mr. Mick and Mr. Eldridge. He further stated he had made an error in his bid and had so informed those in attendance at that meeting. Mr. Smith then cited what he believed to be legal reasons as to why he should be relieved of his obligation of his bid. Mr. Green said those reasons were legal points only and were subject to interpretation. Mr. Green further stated we were not here to argue points of law but to award a contract. Mr. Smith intimated that he might carry the case to the courts but would rather not. After some further discussion, Mr. Smith asked if their [sic] were any further questions to be asked of him before he left the meeting. Mr. Green asked if Mr. Smith cared to indicate at this time whether or not he intended to sign the contract or did he desire more time to consider. Mr. Smith countered by stating he desired to go on record as having informed the consulting engineer on Sunday night, 2 April 1972, of a mistake he, Mr. Smith, had made in addition in submitting his bid and that again on Monday, 3 April 1972 at 4:30 P.M. he had informed Mr. Nobis, Mr. Chapman—Board Members; Mr. Mick—Consulting engineer and Mr. Eldridge, Deputy Secretary of this same error in his own calculations. Mr. Green again asked if Mr. Smith intended to sign the contract and again Mr. Smith did not respond directly. After some further comments, Mr. Smith stated that the Board would hear from him within ten days and, after a few more comments, he left the meeting.”

The trial court in a well written opinion stated it chose to believe appellee’s witness and not appellants’ witnesses. However, the meeting was still in progress at the time Mr. Smith entered and the board could have and should have reconsidered its acceptance. It seems to us that the calling of the informal meeting of April 3 after the phone call to Mr. Mick on April 2 must have given the parties at the April 3 meeting notice of defendant Smith’s intention to rescind. Further, the minutes of the April 6 meeting clearly show that the board itself had some doubts of defendant Smith’s intention to accept the award, since the board’s attorneys requested that the board ask Mr. Smith if he would sign the contract. This question was asked of Mr. Smith as soon as he entered the meeting.

We note that the board could have accepted defendant Smith’s bid with the error corrected (which would still be less than the second lowest bid) or it could have asked Mr. Smith if he would compromise the mistake or it could have rejected the bid. Instead, the board chose to try to take advantage of the mistake. We cannot tolerate the injustice which was perpetrated on defendant Smith.

As stated in Fraser Public Schools Dist v Kolon, 35 Mich App 441, 443; 193 NW2d 64 (1971), lv den, 386 Mich 768 (1971):

"We do no violence to the settled principle that the findings of fact of a trial judge, sitting as trier of the facts, will not be set aside unless clearly erroneous, because we reverse for an error of law. We believe the learned trial judge misapplied the applicable law to his found facts.”

Kutsche v Ford, 222 Mich 442, 449; 192 NW 714 (1923), succinctly explains the applicable legal principles:

" ' "We think that the facts herein bring the case within this principle governing a unilateral mistake stated in 1 Story, Equity Jurisprudence (12th Ed.), § 138:
" ' " 'But where the mistake is of so fundamental a character that the minds of the parties have never, in fact, met, or where an unconscionable advantage has been gained, by mere mistake or misapprehension; and there was no gross negligence on the part of the plaintiff, either in falling into the error or in not sooner claiming redress; and no intervening rights have accrued; and the parties may still be placed in statu quo; equity will interfere, in its discretion, to prevent intolerable injustice.’ * * * In Hearn v. Insurance Co., 20 Wall. ([87] U.S.) 488 [22 L Ed 395 (1874)], it is said:
" ' " 'A mistake on one side may be ground for rescinding, but not for reforming, a contract.’ ” ’ ”

We therefore hold that the trial court should have allowed defendant Smith to withdraw the contract, which would relieve the surety of its liability under the contract. Accordingly, we reverse the judgment against defendant-appellant surety as a matter of law.

It should be noted in passing that this case is substantially similar to Puget Sound Painters Inc v State of Washington, 45 Wash 2d 819, 823; 278 P2d 302, 304 (1954), wherein it was held:

"that equity will relieve against forfeiture of a bid bond (a) if the bidder acted in good faith, and (b) without gross negligence, (c) if he was reasonably prompt in giving notice of the error in the bid to the other party, (d) if the bidder will suffer substantial detriment by forfeiture, and (e) if the other party’s status has not greatly changed, and relief from forfeiture will work no substantial hardship on him.”

Accord: Utah v Union Construction Co, 9 Utah 2d 107; 339 P2d 421 (1959).

Reversed. Costs to appellants.

       The Smith bid was prepared by Lowell C. Smith, now deceased.


author: Per Curiam. Bashara, J.

text:
    SHIELDS v COLLINS
    Docket No. 77-544.
    Submitted February 21, 1978, at Detroit.
    Decided May 9, 1978.
    Leave to appeal applied for.
    Arvel E. Shields brought suit against Rean Collins and Elaine Collins over a boundary line dispute seeking an injunction restraining defendants from entering onto the land in dispute and for damages for destruction of property on plaintiffs land and for construction of a fence along the property line. Defendants counter-claimed seeking a declaration of the actual property line, title to the strip of disputed property and damages. The Sanilac Circuit Court, Allen E. Keyes, J., held for the defendants awarding them title to the property and damages. Plaintiff appeals. Held:

    The doctrine of acquiescence is properly invoked in an action where a boundary line is in dispute where the circumstances indicate that doubt existed as to the location of the boundary and that such doubt was resolved short of dispute by an agreement between the defendants and plaintiffs predecessor in title. Since the underlying reason for the doctrine is to promote the peaceful resolution of such disputes, this rationale is as applicable where there is only a doubt over the location of the boundary as where the doubt has flared into a dispute.
    Affirmed.
    Bashaka, J., dissented and would hold: The trial court erred in applying the doctrine of acquiescence in a case where only the defendants appeared to be in doubt as to the boundary location since the doubt, dispute, or controversy necessary to invoke the doctrine must arise from the landowners’ competing contentions as to the location of the boundary.
    Opinion of the Court
    1. Appeal and Error—Findings of Fact—Witnesses’ Credibility— Evidence.
    A trial court’s findings of fact will be affirmed by the Court of Appeals where they go to the credibility of the witnesses and are consistent with the evidence.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 822.

       12 Am Jur 2d, Boundaries §§ 85, 86.

      2. Boundaries—Acquiescence Doctrine—Rationale—Doubts—Disputes.
    The underlying reason for the application of the legal doctrine of acquiescence to a boundary dispute is to promote the peaceful resolution of such disputes; this rationale is as applicable where there is only a doubt over the location of a boundary line as where the doubt has flared into a dispute.
    3. Boundaries—Acquiescence Doctrine—Circumstances—Doubts —Disputes—Agreements.
    The doctrine of acquiescence is properly invoked in an action where a boundary line is in dispute where the circumstances indicate that doubt existed as to the location of the boundary and that such doubt was resolved short of dispute by an agreement between the defendants and plaintiffs predecessor in title.
    Dissent by Bashara, J.
    4. Boundaries—Acquiescence Doctrine—Legal Effect—Disputes —Amicable Resolutions.

      The doctrine of acquiescence gives legal effect to adjoining property owners’ amicable resolutions of boundary line disputes.

      5. Boundaries—Acquiescence Doctrine—Doubt—Dispute—Controversy—Competing Contentions of Landowners—Appeal and Error.

      The doubt, dispute, or controversy necessary to invoke the doctrine of acquiescence must arise from the landowners’ competing contentions as to the location of a boundary line; therefore, a trial court erred in applying the doctrine in a boundary dispute where only the defendants appeared to be in doubt as to the boundary location.

    6. Boundaries—Acquiescence Doctrine—Construction—Land Conveyancing Laws—Real Property—Titles—Stability— Certainty.

      The doctrine of acquiescence should be strictly construed in deference to the land conveyancing laws which are founded upon the important public policy of maintaining stability and certainty in titles to realty.

      Morrice & Lengemann, for plaintiff.

      Drillock, Atkins, Schrope & Marcus, for defendants.
    Before: Beasley, P. J., and Bashara and D. C. Riley, JJ.
   Per Curiam.

Plaintiff brought suit against defendants, seeking an injunction restraining defendants from entering onto land the ownership of which is the subject of this litigation. He also sought damages for destruction of property on his land and for construction of a fence along the property line. Defendants counter-claimed, seeking a declaration of the actual property line, title to the strip of disputed property and damages. Following a nonjury trial, the trial court found for defendants, awarding them title to the property and damages. From that judgment, plaintiff appeals as of right.

The trial court filed a written opinion making findings of fact. To the extent that these findings go to the credibility of the witnesses and are consistent with the evidence, we affirm them; the trial judge has had ample opportunity to see the witnesses and to form a judgment as to who is more worthy of belief. Under these circumstances, we do not substitute our judgment for that of the trial judge.

He found that, in 1958, there was doubt between plaintiff’s predecessor in title and defendants as to the boundary line between the two parcels of real property, and that they agreed to set the existing fence line as the boundary. The trial judge also found that plaintiff’s predecessor in title, a woman plaintiff had dated, told plaintiff that the property line was the fence. These findings are supported by evidence; we decline to disturb them.

The trial court then found for defendants under Hanlon v Ten Hove, 235 Mich 227, 230; 209 NW 169 (1926).

On appeal, plaintiff attacks the credibility of his predecessor in title and also claims that the trial court erred in finding that the doubt or disagreement which existed here rose to the level of or was of the nature requisite to justify application of the legal doctrine of acquiescence.

As indicated, we reject appellant’s insistence that we accept his version of his communications with his predecessor. We do not disturb the trial court’s conclusion regarding credibility. With respect to appellant’s second claim, we are satisfied that the underlying reason for the rule is the promotion of peaceful resolution of boundary disputes. The best interest of a community is served by giving legal effect to friendly resolution of boundary line disputes or doubts.

This rationale is as applicable where there is only a doubt over the location of a boundary line as where the doubt has flared into a dispute. This is not a case where, in 1958, the parties made a mutual mistake as to the boundary; to the contrary, neither plaintiff’s predecessor in title nor defendants knew where the correct boundary was. Thus, in the within case, doubt existed as to the location of the boundary. That doubt was resolved short of dispute by an agreement between defendants and plaintiffs predecessor in title. If there had not been any doubt as to the boundary line, there would not have been any occasion for defendants and plaintiffs predecessor in title to meet and to agree that the fence would be treated as the boundary line. Further indication of the existence of doubt is the fact that plaintiff was told by his predecessor that the fence was the boundary line, and not the line that plaintiff now claims is correct after his belated 1972 survey. We hold that these circumstances were sufficient to invoke the doctrine of acquiescence. We do not find the trial court’s decision inconsistent with the cases.

Affirmed, with costs.

Bashara, J.

(dissenting). I must respectfully dissent from the majority holding. My review of the facts reveals that the trial court found that defendants made an inquiry to plaintiffs predecessor in title as to the location of the boundary line. In response, defendant was told that the fence marked the boundary. Concluding that this inquiry raised sufficient doubt to invoke the doctrine of acquiescence, the trial judge held that the boundary was thereby fixed at the fence line.

Acquiescence is an ancient doctrine, existing in our jurisprudence for over one hundred years. See Smith v Hamilton, 20 Mich 433; 4 Am Rep 398 (1870). While not specifically articulated in any of the cases that we have examined, I believe the doctrine to be predicated upon a policy of maintaining community peace and harmony. Accordingly, the doctrine gives legal effect to adjoining property owners’ amicable resolutions of boundary line disputes.

Consonant with that policy, I would conclude that the doubt, dispute, or controversy necessary to invoke the doctrine must arise from the landowners’ competing contentions as to the location of the boundary line. More recent cases support that conclusion. See e.g., Rickheim v Boden, 369 Mich 150; 119 NW2d 620 (1963), Hanlon v Ten Hove, 235 Mich 227, 230; 209 NW 169 (1926), Sheldon v Michigan Central R Co, 161 Mich 503; 126 NW 1056 (1910).

In the case under review, only defendants appeared to be in doubt as to the boundary. Upon inquiry, they readily accepted the location designated by plaintiffs predecessor in title. These circumstances are not characteristic of the controversy requisite to invocation of the doctrine of acquiescence. Consequently, the trial court’s judgment does not rest upon the proper legal principle, and plaintiff should have prevailed in his cause of action.

Our land conveyancing laws are founded upon the important public policy of maintaining stability and certainty in titles to realty. Acquiescence is an exception to those laws and is of questionable vitality in an age when the means of accurately determining boundary locations are readily available to those with an interest in real property. Accordingly, if that doctrine is to remain in our jurisprudence, it should be strictly construed in deference to the policy of our conveyancing laws. The majority’s resolution of this case appears to be inimical to that policy.

I would reverse the trial court’s judgment and remand this case with directions to enter judgment for plaintiff.

        Rickheim v Boden, 369 Mich 150; 119 NW2d 620 (1963), De-Hollander v Holwerda Greenhouses, 45 Mich App 564; 207 NW2d 187 (1973).


text:
    ACACIA PARK CEMETERY ASSOCIATION v SOUTHFIELD TOWNSHIP
    Docket No. 77-615.
    Submitted March 15, 1978, at Detroit.
    Decided May 10, 1978.
    Leave to appeal applied for.
    The Township of Southfield specially assessed Acacia Park Cemetery Association for a drain improvement. Acacia refused to pay the assessment and commenced an action against the township to set aside the special assessment and to enjoin the defendant township from attempting to collect it on the grounds that as a rural cemetery association plaintiff was exempt from paying a share of the special assessment for the drain improvement. Summary judgment was granted for plaintiff, exempting it from the special assessment, Oakland Circuit Court, Robert B. Webster, J. Defendant township appeals. Held:

    Rural cemetery associations are not exempt from special assessments where they may have assets other than burial land and funds received for the care and maintenance of burial land with which to satisfy such special assessments.
    Reversed.
    1. Taxation—Property Taxes—Exemptions—Special Assessments.
    Generally, a constitutional or statutory exemption from property taxes is considered an exemption from ordinary taxes only and not from special assessment liability for local improvements.
    2. Taxation—Property Taxes—Special Assessment—Cemeteries— Preservation of Burial Rights.
    The policy of preserving burial rights, which has long been recognized in Michigan, does not permit the sale of cemetery land to satisfy a special assessment.
    3. Taxation—Property Taxes—Special Assessments—Exemptions —Cemeteries—Other Assets.
    A cemetery is not exempt from a special assessment for local improvements where the cemetery has assets other than burial land and funds reserved for the care and maintenance of burial land with which to satisfy the special assessment.

      References for Points in Headnotes

       70 Am Jur 2d, Special or Local Assessments § 45.

       70 Am Jur 2d, Special or Local Assessments §§ 64-67,180.

      Clark, Klein, Winter, Parsons & Prewitt (by Richard C. Marsh), for plaintiff.

      Dillon & Lang, for defendant.
    Before: R. M. Maher, P. J., and V. J. Brennan and N. J. Kaufman, JJ.
   Per Curiam.

Defendant Township of Southfield specially assessed plaintiff Acacia Park Cemetery Association for improvements to the Rummel Relief Drain. Plaintiff is a Michigan corporation organized as a rural cemetery association pursuant to MCL 456.101 et seq.; MSA 21.871 et seq. It was assessed a total of $144,981.81 plus interest, to be paid over a 29-year period.

Plaintiff filed a complaint in circuit court seeking to set aside the special assessment and to enjoin the defendant township from attempting to collect it on the grounds that Acacia Park was exempt from paying its share of the special assessment for the drain improvement and that the procedures followed in assessing the cemetery were improper,

On September 6, 1976, plaintiff moved for summary judgment on the basis of GCR 1963, 117.2(3), no genuine issue as to any material fact. The trial court granted plaintiff’s motion on February 3, 1977, on the ground that plaintiff was exempt from the special assessment. Defendant Township of Southfield appeals as of right.

The sole issue before the Court is whether or not the Acacia Park Cemetery Association is exempt from liability for special assessments, such as that levied by the Township of Southfield. The rural cemetery act provides in pertinent part:

"All the lands of said corporation enclosed and set apart for cemetery purposes, and all the rights of burial therein, shall be wholly exempt from taxation of any kind whatsoever.” MCL 456.108; MSA 21.878.

The General Property Tax Act at MCL 211.7; MSA 7.7 also provides for an exemption.

"The following property shall be exempt from taxation:
"Sixth, All lands used exclusively as burial grounds, and the rights of burial therein, and the tombs and monuments therein, while reserved and in use for the purpose. The stock of any corporation owning such burial grounds shall not be exempt.”

Generally, a constitutional or statutory exemption is considered an exemption from ordinary taxes only and not from special assessment liability for local improvements. 70 Am Jur 2d, Special or Local Assessments, § 45 p 880; 84 CJS, Taxation, § 229, p 445.

Michigan is in accord with the general policy, as is confirmed in Big Rapids v The Board of Supervisors of Mecosta County, 99 Mich 351; 58 NW 358 (1894).

"Other property is also exempt from taxation, such as churches, hospitals, cemeteries, etc., but as to these there is no implied exemption; * * * It has therefore been repeatedly held that, when these are mentioned as exempt in a general tax law, the exemption applies only to the taxes mentioned in the general law, and not to those which are of a private and local character, such as assessments for sewers, sidewalks, and the like, which are made according to the benefits conferred. This is the well-established rule, to which it is unnecessary to cite authorities.” 99 Mich at 353.

See also The Lakeshore & M S R Co v Grand Rapids, 102 Mich 374; 60 NW 767 (1894), and In re Petition of Auditor General, 226 Mich 170; 197 NW 552 (1924).

The rule that an exemption from general property taxes does not extend to special assessments does not stand isolated, however. As defendant points out there is another policy which conflicts with, or at least limits, the liability of a cemetery association for special assessments liability.

In Avery v Forest Lawn Cemetery Co, 127 Mich 125; 86 NW 538 (1901), the Court set forth this second policy.

"It is the settled policy of this State, in common with the universal sentiment of mankind, to preserve and maintain the burial places of the dead. The legislature has, by express enactment, prohibited the sale, except for burial purposes, or mortgaging, of lands set apart for cemetery purposes. It has also in express terms provided for the exemption from levy and sale on execution, or upon any other final process of a court, of all cemeteries, etc., while in use as repositories of the dead. This was within the power of the legislature to do, and so careful has the legislature been to preserve such properties for burial purposes that it has also in express terms taken it out of the power of the court of chancery to decree satisfaction of any judgment out of such exempt property.” 127 Mich at 129-130.

Confronting one another, then, are the rule that exemption from general taxation does not include exemption from special assessment liability and the policy of preserving and protecting the burial places of the dead. We do not believe this latter policy forecloses application of the "no exemption from special assessment” rule. An examination of the relevant cases which have developed the law discloses the reason for our belief.

In Woodmere Cemetery Ass’n v Detroit, 192 Mich 553; 159 NW 383 (1916), plaintiff had incorporated in 1869 under the original rural cemeteries act. Defendant city paved one of the streets bordering on plaintiff’s property and assessed plaintiff for part of the cost. Plaintiff refused to pay the tax and the city purchased the property at a tax sale. Plaintiff did not redeem the property but brought suit to set aside the assessment and the tax sale. The trial court set aside the assessment and tax sale, holding in part that the defendant city could not collect against cemetery property by sale because cemetery property could not be diverted from burial use.

By a divided panel, the Supreme Court affirmed the trial court, stating:

"The obvious purpose of the act cannot be accomplished if the land of a cemetery association may be sold in an adversary or adverse proceeding. It is impossible to reconcile the purpose to bestow burial rights in land, and to punish any interference therewith, with a purpose to disturb those rights whenever a special improvement is made in the vicinity of the land.” 192 Mich at 561.

For purposes of this case, it is significant that the Court noted: "It is impossible to consider whether the property of complainant is exempt from the particular tax or assessment, apart from the remedy provided for the collection of tax.” 192 Mich at 559.

The opinion of the Court concerned itself solely with a sale of burial land to satisfy a special assessment. The exemption and the remedy were considered as one. Following the state policy of preserving the burial places of the dead, the Court held that, as the remedy was the sale of those burial places, the cemetery was necessarily exempt from the assessment because those burial places could not be sold.

It is paramount that the holding of Woodmere be read in context. Contrary to plaintiffs assertion, Woodmere does not stand for the rule that the property of rural cemeteries is exempt from special assessment. Rather, it supports the much more limited concept that a cemetery is exempt from a special assessment when the only means of paying the assessment is through proceeds from the sale of burial land.

Guided by this principle, the Court next considered the matter in White Chapel Memorial Ass’n v Willson, 260 Mich 238; 244 NW 460 (1932). In White Chapel, plaintiff cemetery was levied against by Oakland County for road and drain assessments. The cemetery sued the Oakland County Treasurer, and the auditor general sued the cemetery for the sale of lands to pay the assessments. The cases were heard together. The Court framed the issue as follows: "The question presented in these cases is whether this land was liable to a Covert road tax levied thereon for the years 1927 and 1928, and a drain tax for the year 1927.” 260 Mich at 241.

The Court was again concerned with the sale of lands to satisfy special assessments. After determining that the lands were within the contemplation of the statute, the Court set aside the assessment but only because the assessment was to have been paid from the proceeds of the sale of land set aside for burial purposes.

The limited holdings of Woodmere and White Chapel were somewhat expanded in Forest Hill Cemetery Co v Ann Arbor, 303 Mich 56; 5 NW2d 564 (1942). Forest Hill was not organized pursuant to the rural cemetery act, but the exemption of the General Property Tax Act did apply. The cemetery had been specially assessed for the paving of roads which bounded it. The city attempted to reach land as well as the personal property of the cemetery in satisfaction of the special assessment. Plaintiffs personal property consisted principally of funds which were reserved and earmarked for the care and upkeep of the cemetery. The Court concluded that Ann Arbor could not collect the special assessment by levy and sale of plaintiffs personal property. It found that:

"It is impossible to reconcile the State’s policy to 'preserve and maintain the burial places of the dead’ with any policy permitting the levy and sale of any part of the cemetery company’s personal property which is necessary for the care and maintenance of the cemetery.” 303 Mich at 62. (Emphasis in original.)

Thus, in Forest Hill the Court enlarged state policy from one of preserving only burial lands to one of protecting not only the lands but the funds obtained and accumulated for the care and maintenance of those lands.

In the most recent case, Royal Oak v Roseland Park Cemetery Ass’n, 22 Mich App 651; 177 NW2d 702 (1970), the plaintiff had levied a special assessment against defendant, a rural cemetery corporation, for the costs of constructing a sidewalk adjacent to defendant’s property. When the cemetery failed to pay the assessment, the plaintiff city brought suit to collect the delinquency. The city was granted summary judgment. Defendant contended on appeal that it was not subject to suit because it was exempt from special assessments.

The Court did not agree. It acknowledged Wood-mere and Forest Hill but held that, inasmuch as Roseland Park did not allege that it lacked assets apart from its land and perpetual care fund, the cemetery did have assets from which the special assessment could be paid.

Implicit in the Court’s opinion is the belief that exemption from general property taxation does not extend to liability for special assessments. Yet the. Court is not unmindful of the policy in Michigan of preserving burial rights. That policy is not offended by the Court’s resolution. It allows the plaintiff city to seek a personal judgment holding defendant liable in debt in order to collect the special assessment from assets other than land and the cemetery’s perpetual care fund.

Case law in Michigan supports the decision in Roseland Park. Our Supreme Court cases have refused to permit the sale of land to satisfy a special assessment. The Supreme Court, at least in the case of nonprofit cemeteries, has not permitted the use of funds reserved for the care and maintenance of burial lands to be used for the satisfaction of special assessments. When such property comprises the only available assets from which an assessment can be satisfied, the courts have necessarily found the cemetery exempt from special assessment liability. But when other assets are available for collection, no such exemption exists.

We deal here not with the question of collection but solely with the question of exemption. In Woodmere, White Chapel and Forest Hills, the two questions were intertwined. When, as in the case before us, they are not, we hold that no exemption from special assessment exists. The means and manner of collection are a matter for another suit.

Reversed. No costs, a public question.