Opinion
Docket No. 6,542.
Decided February 23, 1970.
Appeal from Oakland, Robert L. Templin, J. Submitted Division 2 February 5, 1970, at Lansing. (Docket No. 6,542.) Decided February 23, 1970.
Complaint by Northtown Transit Mix, Inc., a Michigan corporation, against Manufacturers National Bank of Detroit, a national banking association, to enjoin a foreclosure action. LeRoy Hosner intervened as a defendant and counterclaimed against plaintiff. Motion to dismiss granted. Intervening defendant appeals. Affirmed.
Bodman, Longley, Bogle, Armstrong Dahling ( Alfred C. Wortley, Jr., and Carson C. Grunewald, of counsel), for defendants.
Eliot Charlip, for intervening defendant.
Before: LESINSKI, C.J., and McGREGOR and V.J. BRENNAN, JJ.
Plaintiff Northtown Transit Mix, Inc. (hereinafter Northtown) filed the instant suit to enjoin defendant Manufacturers National Bank (hereinafter the Bank) from proceeding with its foreclosure action commenced after the Bank had declared a secured loan it had made Northtown in default. Appellant LeRoy Hosner, surety for the loan, moved to intervene as defendant. The motion was granted and Hosner filed an answer and counterclaim against Northtown. Hosner also obtained writs of garnishment which the circuit court later dismissed. Subsequently, the original parties reached an agreement and joined in a motion to dismiss. Hosner objected. The motion was granted, but without prejudice to Hosner's counterclaim.
Hosner brings this appeal as of right. The Bank has filed a motion to dismiss or affirm pursuant to GCR 1963, 817.5(1), (3).
Hosner's appeal from the order dismissing the writs of garnishment is not before the Court because an appeal from that order was not taken within the time allowed by GCR 1963, 803.1.
It is Hosner's position on appeal, without citation of authority, that the dismissal below was "clearly prejudicial" to his counterclaim against Northtown and was injurious to his rights as surety. Hosner does not give any reasons why the dismissal was prejudicial to his counterclaim and our review of the record does not disclose any reason. Moreover, the trial court's judgment of dismissal specifically provides: "that the counterclaim of intervening defendant shall be dismissed without prejudice." (Emphasis supplied.)
Hosner also fails to explain why the dismissal injured his position as surety and does not allege that the actions taken by the Bank toward settlement with Northtown were contrary to the provisions of its contract with Hosner. Also, it appears that the actions were actually beneficial to Hosner's position of surety.
A review of the record and an examination of the briefs make it manifest that the questions sought to be reviewed are without merit.
Affirmed.