Opinion
Docket No. 9872.
Decided June 25, 1971. Leave to appeal denied, 386 Mich. 752.
Appeal from Wayne, Thomas Foley, J. Submitted Division 1 May 5, 1971, at Detroit. (Docket No. 9872.) Decided June 25, 1971. Leave to appeal denied, 386 Mich. 752.
Complaint by Homer Lindsey and Mary Lindsey against Harvey Raymond, Sr., and Harvey Raymond, Jr., for damages arising out of an automobile accident. Complaint dismissed for no progress, and reinstated. Defendants appeal. Reversed.
Perry Bahen, for plaintiffs.
Coticchio Zotter, for defendants.
Before: V.J. BRENNAN, P.J., and J.H. GILLIS and T.M. BURNS, JJ.
This case arises out of an automobile accident which occurred on November 6, 1963. The complaint in this action was filed on September 30, 1966, with service being perfected on October 4, 1966. On November 17, 1966, a praecipe for causes ready for trial was filed. On January 8, 1968, an order was entered dismissing the cause as no progress had been made for a period of one year.
At the time this action was dismissed the Wayne County Circuit Court Rules made the following provisions for reinstatement of causes dismissed for no progress:
"Rule 17.7 Fee for Reinstatement.
"If an action is reinstated by order of the judge on motion, the moving party shall pay costs in the amount of $10.00 to the Clerk of the Court the first time it is reinstated and $25.00 to the Clerk of the Court the second time it is reinstated. In no event shall an action be reinstated more than two times, nor after a year has elapsed from the date of dismissal."
On December 1, 1969, court rule 17.7 was amended by order of the Wayne County Circuit bench. The amendment eliminated the following wording:
"* * * nor after a year has elapsed from the date of dismissal."
On January 23, 1970, a ready for pretrial certificate was filed in this cause. A motion to reinstate the cause of action was filed on April 2, 1970, and the order granting the reinstatement was entered on May 8, 1970.
The defendant claims on appeal that it was improper for the trial judge to reinstate this cause, because at the time this action was dismissed it was subject to the one-year limitation in the old rule 17.7. The plaintiff argues that at the time the case was reinstated it was subject to the new court rule and it was properly reinstated under the new court rule.
It is clear that if the old court rule was applicable to this case it could not be reinstated after a year had elapsed from the time of dismissal. Del Prado Motel, Inc. v. Charles J. Rodgers, Inc. (1968), 14 Mich. App. 728. The general rule is that a new court rule or an amendment thereto may be applied only to cases which are pending at the time the rule is adopted or which are filed subsequent to the adoption of the rule. See 21 CJS, Courts, § 176c, p 281. The question is whether this cause was pending at the time the new rule was adopted. As noted above this case was originally dismissed on January 8, 1968. At the time it was dismissed it was subject to the one-year limitation found in Wayne County Court Rule 17.7. That one-year limitation would have expired on January 8, 1969. The amended court rule was not effective until December 1, 1969. We find, therefore, that this action was not pending when the new court rule was adopted and therefore that the trial judge acted improperly in reinstating the action.
For the foregoing reasons the order of the trial court reinstating this cause of action is hereby reversed.
Reversed.