HEIKKINEN
v.
HOVINEN.
Docket No. 775.
Michigan Court of Appeals.
Decided August 10, 1967.*543 Wisti & Jaaskelainen, for plaintiffs.
Norman McLean, for defendant.
FITZGERALD, P.J.
On May 29, 1963, a car owned by plaintiff Reino Y. Heikkinen and driven by plaintiff Laird H. Heikkinen was hit in the rear by a car operated by defendant Hovinen, causing personal injuries to all the plaintiffs.
The plaintiffs' complaint and jury demand, together with later amendments, alleged that defendant Hovinen was an employee of Periodical Publishers and in the course of employment at the time of the accident. Hovinen's answer admitted that he was in the course of employment. Periodical Publishers filed a motion for an accelerated judgment stating that the court lacked jurisdiction over them because of faulty service of process and alleging further that Hovinen was an independent contractor and not an employee. An affidavit to this effect, relative to Hovinen's status, was filed with the motion.
The trial court entered an order making the following specific findings:
"1. The court is without jurisdiction of Periodical Publishers Service Bureau, Inc., because service of process on that corporation is not in compliance with section 1920 of the revised judicature act.[1] Furthermore, this defendant is not a proper party *544 to the litigation as it was not the owner of the automobile driven by Wesley G. Hovinen, codefendant. Section 37 of the Michigan vehicle code[2] defines the word `owner' of section 401 of the Michigan vehicle code.[3]
"2. That said Wesley G. Hovinen was not in the course of his employment and not an employee of said corporate defendant when the accident involved occurred. Gorman v. McCleaf (1963), 369 Mich. 237.
"3. That part of GCR 1963, 116.3, referring to action by the court reads as follows: `shall postpone the hearing if a jury trial has been demanded, pursuant to right, on or before the day of hearing.' This has no application where the issues as here relate entirely to questions of law."
Following this finding, plaintiffs filed an amended complaint and demand for jury and properly served Periodical Publishers. Hovinen neither filed an appearance nor answered the amended complaint. Periodical Publishers once again filed a motion for accelerated judgment alleging the findings of the order as set forth above and following hearing the court granted the motion for accelerated judgment in the following language:
"That the matter involved is res judicata because the court, on August 11, 1964, held that the defendant, Periodical Publishers Service Bureau, Inc., was not a party to this litigation, was not the owner of the automobile and defendant, Wesley G. Hovinen, was not in the course of his employment and not an employee of said Periodical Publishers Service Bureau, Inc., when the accident occurred."
From the accelerated judgment against them, plaintiffs filed claim of appeal.
Plaintiffs go to the heart of the matter by stating that the original finding of lack of jurisdiction over *545 Periodical Publishers precluded the court from entering any other findings. They allege that such other findings relating to Hovinen's employment status were nugatory since if the court had no jurisdiction, further decisions were a nullity.
Plaintiffs' position is well taken, and despite defendant Periodical Publishers' contention that the circuit court had jurisdiction by consent and request to decide more than the question of propriety of service, the later holdings are of no force and effect.
If a court is without jurisdiction, it is elemental that it cannot make further decisions in favor of either party. Dismissal for want of jurisdiction is the sum and substance of the court's power in this instance. In Jackson City Bank & Trust Co. v. Fredrick (1935), 271 Mich. 538, the Court stated at page 544:
"There is a wide difference between a want of jurisdiction, in which case the court has no power to adjudicate at all, and a mistake in the exercise of undoubted jurisdiction, in which case the action of the trial court is not void although it may be subject to direct attack on appeal. This fundamental distinction runs through all the cases.
"When there is a want of jurisdiction over the parties, or the subject-matter, no matter what formalities may have been taken by the trial court, the action thereof is void because of its want of jurisdiction, and consequently its proceedings may be questioned collaterally as well as directly. They are of no more value than as though they did not exist."
This pronouncement finds strong support in Michigan case law. See Fox v. Martin (1938), 287 Mich. 147; Edwards v. Meinberg (1952), 334 Mich. 355; Shane v. Hackney (1954), 341 Mich. 91.
The second motion for accelerated judgment was improperly granted since res judicata could not conceivably *546 apply to previous findings which were without legal import. It was a factual issue whether Hovinen was an employee of Periodical Publishers or an independent contractor. It is further a fact question as to whether or not he was in the course of his employment at the time of the accident. Demand for jury trial having been seasonably made, the provisions of GCR 1963, 116.3, became applicable as follows:
"As to defenses and objections based upon subrule 116.1(5) the court may order immediate trial of any disputed questions of fact, and judgment may be rendered forthwith if the proof shows that the moving party is entitled to judgment on the facts as determined; or the court may postpone the hearing on the matter until the trial on the merits, and shall postpone the hearing if a jury trial has been demanded pursuant to right on or before the day of the hearing." (Emphasis supplied.)
Factual issues were before the court, jury trial had been demanded and plaintiffs were entitled to a hearing on the merits since no previous adjudication was before the court to which the doctrine of res judicata could be applied. The matters being disputed, they were not amenable to summary disposition on affidavit.
Reversed as to the second motion for accelerated judgment and as to those portions of the first motion for accelerated judgment going beyond the question of jurisdiction over defendant Periodical Publishers, and remanded for further proceedings.
Costs to appellants.
BURNS and HOLBROOK, JJ., concurred.
NOTES
[1] CLS 1961, § 600.1920 (Stat Ann 1962 Rev § 27A.1920).
[2] CLS 1961, § 257.37 (Stat Ann 1960 Rev § 9.1837).
[3] CLS 1961, § 257.401 (Stat Ann 1960 Rev § 9.2101).