255 N.W. 179 | Mich. | 1934
Plaintiffs are the owners of the Fountain Bathhouse in Mount Clemens, Michigan. They gave a second mortgage to Leslie Ullrich who, in turn, assigned the same to his brother, Paul J. Ullrich. February 9, 1932, Laura Ullrich, widow of Paul J. Ullrich, acquired title to the mortgage by assignment from the executors of the estate of Paul J. Ullrich. Upon default, she foreclosed the mortgage and bid in the property at sheriff's sale June 8, 1932, for $2,617.52.
June 7, 1933, two days before the equity of redemption would expire, plaintiffs filed their bill of complaint for relief under Act No. 98, Pub. Acts 1933, against Leslie Ullrich as an individual and as executor of the estate of Paul J. Ullrich, deceased. July 5, 1933, the trial court permitted plaintiffs to *138 amend their bill of complaint to show the true mortgagee and to add Laura Ullrich as one of the defendants.
At the time the bill of complaint was filed there were unpaid taxes on the property amounting to $3,853.62, a first mortgage of $6,845, unpaid interest in the sum of $479.16. During the year 1932 plaintiffs had received rental from the premises in the sum of $1,800, no part of which had been used for upkeep or for the payment of any indebtedness on the premises.
Plaintiffs contend that the suit is in the nature of anin rem action and had actually been instituted before the expiration of the period of redemption, while the defendants moved to dismiss upon the grounds that as to Laura Ullrich the court had no jurisdiction under Act No. 98, Pub. Acts 1933, since the proceedings as to her had not been commenced before the expiration of the period of redemption, and further, that plaintiffs had not made out a case for equitable relief.
The trial court dismissed the bill of complaint on both grounds and plaintiffs appeal.
The plaintiffs' contention that this is an in rem action is without foundation. The nature of the relief asked is an injunction, which is a purely personal remedy and can be granted only against those persons of whom the court has actual jurisdiction.
Act No. 98, Pub. Acts 1933, requires that the suit be instituted before the expiration of the period of redemption. As to defendant Laura Ullrich the suit was not instituted until after the expiration of the period of redemption and the fact that institution of suit against her took place by way of amendment of the original bill does not affect this result.
"The running of the statute of limitations is not interrupted by the commencement of an action *139 against the servant of the real party in interest, against a person no longer a party in interest, against a person in the wrong capacity, or against the wrong party." 37 C. J. p. 1062.
"The general rule is well settled that, where new parties defendant are brought in by amendment, the statute of limitations continues to run in their favor until thus made parties. The suit cannot be considered as having been commenced against them until they are made parties." 37 C. J. p. 1066.
These statements are well borne out by the decisions. In the early case of Miller v. M'Intyre, 6 Pet. (31 U.S.) 61, 64, the court held:
"Until the defendants were made parties to the bill, the suit cannot be considered as having been commenced against them. It would be a novel and unjust principle to make the defendants responsible for a proceeding of which they had no notice; and where a final decree in the case could not have prejudiced their rights."
The foregoing case was cited with approval in United States
v. Martinez,
"For obvious reasons, a party brought into court by an amendment, and who has, for the first time, an opportunity to make defense to the action, has a right to treat the proceedings, as to him, as commenced by the process which brings him into court."
In Leatherman v. Times Co.,
"But the case falls within the principle that where a plaintiff commences his action against the wrong party, when no such party was in existence, and, after the statute of limitations has fully run, amends his petition by bringing in new parties as defendants, the parties so brought in may successfully rely upon the statute of limitations as a defense."
In Proctor v. The Wells Bros. Co. of New York,
Again, in Svidersky v. Industrial Commission of Ohio,
"The commencement of an action by service of summons on a party named as defendant will not stop the running of the statute of limitations for commencing the action against a second party made defendant by amendment to the petition, thus making a new party of one against whom the limitations has expired during the pendency of the action, unless the original defendant was a joint contractor or otherwise interested in the action." *141
Other cases to the same effect are: Wilson's Adm'r v. Holt,
The record discloses that plaintiffs failed to pay taxes for the years 1930, 1931 and 1932, amounting to the sum of $3,853.62, failed to keep the premises in repair, and applied no part of the $1,800 rent received to the upkeep of the property. Upon these facts the trial court denied relief upon equitable grounds. We think the court was right. The statute is throughout purely permissive in terms, depending upon the discretion of the court and never a matter of right.
We have considered other claims made by plaintiffs, but they are not material to the issue and a decision upon them would serve no useful purpose.
Judgment affirmed, with costs to defendants.
NELSON SHARPE, C.J., and POTTER, NORTH, FEAD, WIEST, BUTZEL, and BUSHNELL, JJ., concurred. *142
