Docket No. 36 | Mich. | Jul 17, 1919
This is an action on a fire insurance policy. It was tried by the circuit judge without a jury under a stipulated statement of fact and a judgment was rendered in favor of the plaintiff which defendant here reviews. The policy contained the following provision:
“No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve (12) months next after the fire.”
The fire occurred on September 15, 1916. Suit was thereafter commenced by declaration with rule to plead attached. The declaration was filed on September 10, 1917. It was served by a deputy sheriff of Ingham county on the insurance commissioner of the state on September 19, 1917. It is therefore apparent that the declaration was filed five days before the expiration of the year, but served four days after the expiration of the year limited by the terms of the policy. The sole question presented on this record is whether the learned circuit judge was right in holding that the suit was commenced within one year in accordance with the terms of the policy.
Section 9985 of the Compiled Laws of 1897 as amended by Act No. 168, Pub. Acts 1899, and Act-No. 76, Pub. Acts 1905, provided:
*14 “Actions brought for the recovery of any debt, or for damages only, may be commenced, either:
“1. By original writ; or,
“2. By filing in the office of one of the clerks of the court a declaration, to which is attached, or upon which is indorsed, a rule requiring the defendant to plead to such declaration within fifteen days after the service of a copy thereof and notice of such rule, and serving a copy of such declaration, and notice of such rule personally on the defendant.” * * *
Under the provisions of this statute this court held in several cases that inasmuch as the statute provided for' serving a copy of the declaration, suit was not commenced until such service was had. Detroit Free Press Co. v. Bagg, 78 Mich. 650" court="Mich." date_filed="1889-12-28" href="https://app.midpage.ai/document/detroit-free-press-co-v-bagg-7934491?utm_source=webapp" opinion_id="7934491">78 Mich. 650; Cofrode v. Wayne Circuit Judge, 79 Mich. 332" court="Mich." date_filed="1890-01-31" href="https://app.midpage.ai/document/cofrode-v-gartner-7934562?utm_source=webapp" opinion_id="7934562">79 Mich. 332 (7 L. R. A. 511); Wilton v. City of Detroit, 138 Mich. 67" court="Mich." date_filed="1904-10-18" href="https://app.midpage.ai/document/wilton-v-city-of-detroit-7942780?utm_source=webapp" opinion_id="7942780">138 Mich. 67; and Boyle v. City of Detroit, 152 Mich. 248" court="Mich." date_filed="1908-04-01" href="https://app.midpage.ai/document/boyle-v-city-of-detroit-7944732?utm_source=webapp" opinion_id="7944732">152 Mich. 248.
In 1915, the so-called judicature act was passed. Section 12407, 3 Comp. Laws 1915, a part thereof, provides as follows:
“All actions at law in any court of record, except mandamus, quo warranto, and certiorari, may be commenced either,
“1. By original writ; or
“2. By filing in the office of one of the clerks of the court, a declaration upon which is indorsed a notice in substantially the following form:
“To......................... .Defendant:
“You are hereby notified that a suit has been commenced against you as defendant by............... •as plaintiff, and that the within is a true copy of plaintiff’s declaration in said cause, and that if you desire to defend the same, you are required to plead thereto within fifteen days after service upon you of a copy of said declaration.
“Dated..........................
"
“Attorney for plaintiff.”
It will be noted that in this statute there is no reference whatever to service. The framers of the new
Judgment is affirmed.