Lud v. Sammons

T. M. Burns, J.

(dissenting). I respectfully dissent. Excusable neglect was not the only reason disclosed by the record which would justify relief from operation of the judgment. Plaintiffs attorney in the sworn motion for reinstatement averred that among the factors generating the lack of progress was defense counsel’s postponement of the pretrial conference. The reason for the postponement, however, was in dispute. This is borne out by the following excerpt from the trial court’s opinion where in summarizing the plaintiffs position it said:

"(3) The pretrial conference was postponed at the request of defendants’ counsel and for the purpose of accomplishing a later deposition. (While no record appears in the file to indicate why the pretrial conference was not held, a record of the Assignment Clerk reads: '5-2-67 demand PTC set 7-5-67 adj’d w/o date pltfs atty failed to show.’)”

Therefore since grounds other than excusable neglect were alleged by the plaintiff, Klapprott v United States, 335 US 601; 69 S Ct 384; 93 L Ed 266 (1949), relied upon by the majority, is neither in point with nor controlling in the instant appeal.

Moreover, the reinstatement of a case which has been dismissed for lack of progress rests within the sound discretion of the trial court. This Court will not disturb the trial court’s determination unless an abuse of that discretion is plain. Reynolds v Dolbertien, 366 Mich 162 (1962); Prine v *203Hatfield, 5 Mich App 57 (1966). Appellate review is, therefore, restricted to ascertaining whether or not there was any justification for the lower court’s decision. Hurt v Cambridge, 21 Mich App 652 (1970).

Here, although the trial court was not entirely satisfied with the reasons advanced for the failure to make progress, it nonetheless ordered the cause reinstated in order to avoid severe hardship to the plaintiff, who would otherwise lose his day in court.

After reviewing the record presented on appeal, I cannot say that there was a clear abuse of discretion or that the trial court was not justified in reinstating the case.

Accordingly, the order reinstating this cause should be affirmed.