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02/09/76 DIVERSIFIED EQUIPMENT LEASING CORPORATION

February 9, 1976

DIVERSIFIED EQUIPMENT LEASING CORPORATION
v.
BOOTH



Appeal from Genesee, Donald R. Freeman, J.

McGregor, P. J. and D. E. Holbrook, Jr., and M. J. Kelly, JJ.

SYLLABUS BY THE COURT

1. Judgment -- Default Judgment -- Setting Aside Default -- Attorney's Negligence -- Four-Month Period.

A trial Judge has the discretion to set aside a default judgment where the default was caused by the negligence of defendant's attorney and where the motion to set aside the judgment was made within four months from the entry of the judgment and where manifest inJustice would otherwise result.

2. Appeal and Error -- Default Judgment -- Discretion of Trial Judge -- Neglect of Party -- Inexcusable Neglect.

A trial Judge's exercise of discretion in refusing to set aside a default judgment should not be overturned where the judgment was entered because of a party's neglect and the neglect is unexplained and inexcusable.

3. Judgment -- Default Judgment -- Setting Aside Judgment -- Manifest InJustice -- Court Rules.

A default judgment should be set aside whenever manifest inJustice or an unconscionable result flows from the default judgment, even though the policy against setting aside default judgments is strict (GCR 1963, 528.3[6]).

4. Judgment -- Default Judgment -- Setting Aside Judgment -- Judges -- Discretion.

A trial court's refusal to set aside a default judgment is reversible error where the court failed to recognize the existence of its discretion to do so.

The opinion of the court was delivered by: Kelly

Complaint by Diversified Equipment Leasing Corporation against Douglas D. Booth. Judgment for plaintiff. Plaintiff served a writ of garnishment upon Model Cities Development Corporation, and subsequently a default judgment was entered against Model Cities. Model Cities moved to set aside the default judgment. Motion denied. Model Cities appeals.

This is an appeal from the denial of a motion made by the garnishee defendant to set aside a default judgment.

Plaintiff Diversified Equipment Leasing obtained a judgment against Douglas Booth in the amount of $11,500 on September 8, 1971. Subsequently plaintiff obtained a writ of garnishment against the Model Cities Development Corporation (hereinafter Model Cities). Due to the negligence of its attorney,* no one appeared on behalf of Model Cities at a ...


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