Opinion
Docket No. 59814.
Decided November 18, 1982.
Rice, Rice Gilbert (by Allan W. Gilbert), for plaintiff.
Brown Winckler (by John Boyko, Jr.), for Centurion Excavators, Inc.
Defendants appeal by right from an order granting plaintiff's motion to dismiss with prejudice an action for claim and delivery. An order granting plaintiff possession of the claimed property pending final judgment had been entered pursuant to GCR 1963, 757.5 prior to the motion to dismiss.
In support of the trial judge's decision, plaintiff relies heavily on two opinions interpreting Administrative Order 1973-3, 389 Mich xliv (1973), which amended GCR 1963, 757, Bennett v Wright, 79 Mich. App. 566; 263 N.W.2d 17 (1977); Detroit Northern Savings Loan Ass'n v Woodworth, 54 Mich. App. 517; 221 N.W.2d 190 (1974). The Administrative Order stated in part:
".7 Hearing on Order to Show Cause. If the defendant appears in response to the order to show cause the court shall thereupon hear the same as a motion. If the court determines that the defendant has no meritorious defense to the action the court is empowered to enter an order for delivery of any or all of the property claimed in the complaint to the plaintiff in conformity with GCR 1963, 757.2-757.8. If the court determines that there may be a meritorious defense to the action the case shall thereupon be set for trial in conformity with the rules of the court in which the action is pending." (Emphasis supplied.)
GCR 1963, 757 was amended several times between the issuance of Administrative Order 1973-3 and the time of the hearing on prejudgment possession in this case. At the time of the hearing, the following provision applied to the prejudgment hearing on possession:
"At the hearing, each party may present proofs. To obtain possession before judgment, the plaintiff must establish
"(A) that his right to possession is probably valid; and
"(B) that the property will be damaged, destroyed, concealed, disposed of, or used so as to substantially impair its value, before trial." GCR 1963, 757.5(c)(2).
GCR 1963, 757.5(d) governs orders for possession pending final judgment. This provision lists several options for relief available to the trial judge. It does not include granting final judgment to the claimant as if by motion. We must conclude that the provision allowing the trial judge to decide, at the hearing on prejudgment possession, that a defendant has no meritorious defense to a claim, no longer applies. A final judgment in plaintiff's favor in a claim and delivery action may not be granted at the close of the hearing on prejudgment possession. After prevailing on its claim for possession pending final judgment, a plaintiff must obtain a final judgment entitling it to possession or face the penalty provided in GCR 1963, 757.8(d). We do not preclude the plaintiff from moving for summary judgment, GCR 1963, 117.2, subds (2), (3). We do require the plaintiff to follow the court rules in making such a motion. Under the circumstances here, defendants did not have notice before the June 3, 1981, hearing that plaintiff sought final judgment at that time.
GCR 1963, 757.8(d) states:
"(d) If the defendant has been deprived of his property by a prejudgment order and the main action is discontinued or dismissed, the defendant may apply to the court for default judgment under GCR 1963, 520."
Plaintiff also claims that defendants' appeal is untimely because the order entered as a result of the hearing on prejudgment possession was, on its face, a final order. We begin by noting that the order was not entered in conformance with the court rules and did not reflect the ruling of the trial court at the hearing. On these grounds, defendants have appealed from the denial of their motion to vacate the order. We think the better view is that the order was not a final judgment when viewed in the context of the case. If plaintiff believed it was a final judgment, there was no reason for its motion to dismiss the complaint. This claim is without merit.
We reverse the order dismissing plaintiff's complaint. No costs, a question of first impression.