
    ACME EQUIPMENT COMPANY v. UNITED PACIFIC INSURANCE COMPANY
    1. Appeal and Error — Appeal as op Right — Claim op Appeal — • Timeliness.
    Right of appeal was not preserved where defendant failed to file its claim of appeal as of right within 20 days after denial of a motion to set aside a default judgment or within 20 days after the entry of an order denying a motion for rehearing made within 20 days after the denial of a motion to set aside (GCR 1963, 803.1).
    2. Appeal and Error — Appeal as op Right — Timeliness.
    Motion to reinstate motion for rehearing, which was filed 10 days after withdrawal of motion for rehearing, 56 days after motion for rehearing was filed, and 59 days after denial of a motion to set aside a default judgment held, not to restore defendant’s appeal as of right to the Court of Appeals (GCR 1963, 803.1).
    Reperenoes por Points in Headnotes
    [1] 4 Am Jur 2d, Appeal and Error §§ 290, 292, 316.
    [2] 4 Am Jur 2d, Appeal and Error ’§§ 290, 292, 306.
    Appeal from Common Pleas Court of Detroit, Benjamin C. Stanczyk, J. Submitted Division 1 March 5, 1969, at Detroit.
    (Docket No. 5,189.)
    Decided May 28, 1969.
    Complaint by Acme Equipment Company, a Michigan corporation, against United Pacific Insurance Company, a foreign corporation, for rentals accrued and owing. Default judgment for plaintiff. Motion to set aside default judgment denied. Motion to re-
    
      instate previously withdrawn motion for rehearing denied. Defendant appeals.
    Appeal dismissed.
    
      Samuel J. Rhodes and Norman Rom (George Stone, of counsel), for plaintiff.
    
      Kenney, Kenney, Chapman & Prather, for defendant.
    BEFOSE: Lesinski, C. J., and Fitzgerald and Y. J. Brennan, JJ.
   Y. J. Brennan, J.

On October 23, 1967, plaintiff obtained a default judgment against defendant in the Common Pleas court for the city of Detroit. Defendant filed a motion to set aside the default judgment on November 21,1967, which motion was denied on November 28, 1967.

On December 1, 1967, a motion for rehearing was filed, but was withdrawn January 16, 1968. Defendant filed a motion to reinstate the motion for rehearing on January 26, 1968. On February 9, 1968, the motion to reinstate the motion for rehearing was denied. Defendant filed a claim of appeal on February 27,1968.

An examination of the chronology of this cause reveals that the defendant has failed to preserve its right of appeal. The claim of appeal was not filed as required under the provisions of GCB. 1963, 803.1 Defendant failed to file its claim of appeal within 20 days after denial of the motion to set aside the default judgment or within 20 days after the entry of an order denying a motion for rehearing made within 20 days after the denial of the motion to set aside.

Had defendant pursued its motion for rehearing filed on December 1 and had it been denied, 20 days would have remained from the date of the denial to perfect an appeal. The motion for rehearing was withdrawn however. The subsequent efforts of defendant to reinstate its motion for rehearing indicate a vain effort to revive its right to appeal. The right of appeal cannot be restored in this fashion.

This appeal is to be distinguished from that in Hartman v. Roberts-Walby Enterprises, Inc. (1968), 380, Mich 105. There the claim of appeal was based on an order denying a motion for rehearing, which motion was filed within 20 days after denial of a motion to set aside a default judgment. The jurisdictional time for filing the claim of appeal was governed by the formal entry of the order by the circuit court, and the appeal was filed within that time.

In view of defendant’s failure to comply with GrCR 1963, 803.1, this appeal is hereby dismissed.

Costs to plaintiff.

All concurred. 
      
       GCR. 1963, 803.1 provides:
      “Appeal, to the Court of Appeals as of right in eivil eases, shall he taken not later than 20 days after the entry of the judgment or order appealed from, or within 20 days after the entry of an order denying a motion for a now trial or rehearing, provided such motion is made and served (a) within 20 days after entry of the judgment or order appealed from. * * *”
     