*1 687 CONRAD v. WARD Opinion op the Court Noncomplianoe. 1. Process —Substituted Service — Quashing noncompliance for with a court order authorizing substituted proper service was where the order required plaintiffs post the summons on the specified front doors of certain buildings personal and to effect service a member of the family defendant’s and where the papers were tacked to specified the doors of buildings, but a member family (GCR defendant’s not served 105.8). 2. Process —Substituted Service —Substantial Defect. Failure to have a personally defendant served or served substituted method by authorized the court order constitutes a substantial (GCR 1963, defect 105.8). by Levin, 3. Process —Substituted Service —Defective Service —Avoidance Evidentiary Hearing. of Service — Evidence that the process, had been defendant although finding holding made, justified so had been formal remanding evidentiary hearing as to whether for defendant pendency had notice the action the statute before expired limitations where had not served defend- compliance special ant in strict order, with a court and the trial judge, although acknowledging plaintiff’s good faith efforts defendant, quashed plaintiff’s serve the service and dismissed action as limitations; barred the statute it found had action, notice service is defendant defective (GCE 1693, curable IS, 10S.S, 10S.8). amendment References Points Headnotes [1,2, [3-7, Jur, Jur, 8] 9] Am Process Process 57-66. 4, §§ 42 Am §§ [May op op Knowledge 4. Process —Avoidance Service — Action. successfully who avoids service should not permitted avail in service defect himself failure *2 process statutorily- where the action was commenced of prescribed period; pending had notice if defendant of against him, complain action he should not heard because successfully plaintiffs’ process avoided server. Compliance. 5. Process —Service—Limitational Period — purpose requiring The commencement an action and service of of statutorily-prescribed period within the limitational of (1) plaintiff when commences his action within satisfied period (2) and learns the commencement defendant of statutory regardless period, the action within the how he of of notice, through obtains his whether otherwise, service or formal plaintiff substantially complied either the has within the statutory period requirement with the that service be effected attempted or the to avoid service. defendant op 6. Process —Defective Process —Avoidance Service —Knowl- edge op Compliance. Action —Substantial negligence Commencement statutorily- action within the of prescribed period receipt and notice defendants’ statutory period action within the comply rendered a failure aspects in all with a court-ordered method substituted invalidating only judgment in the sense that no could be entered until was cured defendant defect compliance requirement where there was substantial with the expiration statutorily- that service be effected before prescribed period actively successfully and where and defendant process. avoided service of Duty. 7. Process —Service of Process —Plaintiff’s plaintiff required prosecute diligence his action with due substantially and comply to either requirement or, alternatively, service be to show that he formal effected prevented complying because evasive from of defendant’s tactics. Compliance. 8. Process —Substituted Service —Substantial authorizing A court order process by plain- substituted service of tacking complaint buildings the summons and to the at tiff’s specified leaving two complaint addresses and a summons and at usual abode with a member defendant’s of defendant’s family age who resides there and was suitable was sub- stantially complied plaintiff’s with where server went addresses, posted complaints, summonses lenocked rang doorbells, answered, but one on the doors (GCR 1963, 105.8). did all that he could do because Right of Action —Avoidance —Notice 9. Process —Defendant’s Service. right an action to receive notice the commencement The only period within the limitational is a defendant’s right concerning service; a who avoids substantial prejudiced is not to receive failure successfully in hand which he the summons
avoided. Moody, Sub- Wayne, Jr., J. Blair Appeal from February Detroit. at Division mitted May 7056.) 21, 1971. (Docket Decided No. Marguerite E. Complaint M. Conrad Paul *3 D. and Violet Gr. Clarence Ward damages arising an automobile ac- out for Ward process quashed. service cident. Substituted ap- judgment Summary Plaintiffs for defendants. peal. Affirmed. plaintiffs. for Kane,
John F. Joselyn, Halsey & Bohall, Rowe, Martin, defendants. and and R. B. Burns J., Before: C. Lesinski, JJ. B. at- R. J. After several unsuccessful Burns,
tempts in to locate defendant Clarence Gr. Ward complaint him and order to serve sum- plaintiffs granted pur- mons, a court were order suant to 105.8.1 The order author- GCR court may, “The in court in which an action has been commenced discretion, upon its allow to be made a defendant [May tacking process by service
ized substituted complaint of cer- front doors to the leaving buildings, specified a summons “and, tain at and this order place with member abode some usual defendant’s age residing, family who is of suitable therein informing person of the nature discretion, Although papers were served”. of the buildings specified in the tacked to the doors upon personally they served were order, court Noncompliance family. any defendant’s member of quashing resulted in order summary judg- with court order process. Subsequently a the statute of limitations entered since ment was plaintiffs’- claim.2 had run on compli- argue their “substantial Plaintiffs authorizing substituted ance” with the court order leg-ally was sufficient. is rela- herein consideration The court rule under give flexibility designed tively new, was providing system by a means service, defendant sub- determined the court, ject jurisdiction of courts of this state. Honigman An- See 1 & Mich Court Rules Hawkins, (2d ed), pp notated judge
The trial correct his refusal recognize complied only a form of service that one-half of It his order. should be noted that the judge plaintiffs’ request trial altered “or, from require to read alternative”, “and”, order to *4 conspicuous posting papers both a “and” service give other manner which him reasonably calculated to proceedings heard, opportunity actual notice of an to be permitting such order entered before upon is reasonably showing made to the court cannot provided be made in the manner rules.” under other for 2 MCLA 600.5805(7) (Stat 27A.5805[7]); Ann 1962 Eev § § 600.5856(3) (Stat 27A.5856[3]). MCLA Ann 1962 Eev § § by J. Levin, family. Plaintiffs’ fail- member of some fair comply which was court’s order ure to precludes under the circumstances and reasonable requested (1961), Meier Meier relief. See v. their Mich 653. Tuohy (1971), 169, 33 Mich In Barber v. plaintiff filed an action a nonresident mo- Secretary of a State was served with torist. The complaint. copy and a mailed to the defendants and was by them. Barber failed to include in the received envelope the notice that addressed the defendants required Secretary of had been State served as by failure a the act. This was technical defect that by the Court held could be cured amendment. present In the case we not have a technical do defect but substantial defect that the defendant person by either in served the method judge. authorized
Affirmed. Costs to defendants. J.,C. concurred.
Lesinski, plaintiffs commenced (dissenting). The September That tolled 1968. 9, action on this days. for running limitations statutes of on the day made could be on which service The last 16, was December defendants opposition plaintiffs were filed Affidavits summary judgment: defendants’ motion September attorney (a) that on Plaintiffs’ swore attempt Penfil to he retained Gerald Penfil re- the defendants. effectuate service attorney plaintiffs’ ported that Rex Harmon represented de- telephoned that he was him and attorney and said fendant Clarence Ward’s *5 [May- 33 J. Levin, Dissent with. Penfil as would communicate to where Ward could but made, and when service Ward. had not heard from Penfil’s subse- Penfil to reach Harmon were until unavailing efforts quent when Harmon while November he reported that, had in the he past, handled matters Ward had knowledge present no of his whereabouts. sheriff that on
(b) deputy September stated 18 he attempted 17 and serve defendants at residence, Avenue, their Steel Detroit, Mich- igan, responded but no one when he rang door- bell and he knocked front door. On December he 12, 1968, again visited residence and was man, advised aby who said he was Clarence Ward’s that his father was son, longer no at living that address. On December 13, he learned that 1968, Ward had retired and had moved from the Steel Avenue address to 18733 Pinecrest Allen Drive, Park, Michigan. that he a professional Penfil stated
(c) Gerald had been retained by plaintiffs’ server and service. made four at- to effectuate He attorney at serve defendants the Steel Avenue tempts to a man address. On the fourth occasion who said he answered the door, was Ward’s son refused disclose where father and offered to take lived, himself. The said he would com- papers son him municate with his father and would have call It was the following server. day heard from Rex he that he was Harmon, who said Clarence Harmon said he attorney. Ward’s would advise to accept Ward service and he would have communicate with Penfil. Ward Penfil later learned had remarried and, Ward on or subsequent December 9 or 10, he was at living the Pinecrest address. deputy
(d) that on Decem- stated Another sheriff attempted to serve ber address at at the Pinecrest p.m. p.m. and 3:50 but one answered 12:20 *6 knocking He at the door. doorbell or front p.m. and said at 6:05 A woman answered returned and Ward not at that address that Clarence was presently did not know where that she located. deputy
(e) another sheriff that on Still stated pursuant Judge Moody’s December order authorizing substitute service under UCE Pinecrest he visited the Avenue and the 105.8, Steel rang re- doorbells residences, and, Drive ceiving the front response, no and knocked the doors together a with order, tacked true of the court’s prominent place complaint, the in a on the front door of each residence. opinion quashing
In his the dismissing plaintiffs’ action barred as judge statute of limitations, the trial said: “Unfortunately, un- are sometimes harsh results good-faith recognizes This court avoidable. vig- agents plaintiffs’ counsel efforts of orously well as obtain service of as dilatory How- defendant. and evasive efforts are re- methods when alternative ever, opinion quested this court is the under this rule it strictly must be construed alternative methods such complied with.” service made accordance Whether pursuant special requirements to a statute or in the made indeed, court it be must, order required. in this was not manner Service case requirements conformity strict judge’s not, order It does and, was defective. thus, [May by Levin, necessary consequence
however, follow as plaintiffs’ action must fail. judge finding While the trial made no formal avoiding service, Clarence Ward was he indicated impression, his ing I which share, that Ward was avoid- my opinion, In
service. this case should be evidentiary remanded for an as determination pendency whether did have Ward notice of the expired. the action before the statute of limitation If he then did, the defective service is curable amendment. purpose pro-
The of limitations is statutes tect defendants from stale To end, claims. requires law both that an action be commenced and that the served within the period. This action was commenced within the statutory period. If the defendant was not served because he was then service, there *7 why permitted sound reason should be to avail any himself of the defect or failure of process. pendency If he had notice of the of the complain action, he should be not heard to because plaintiffs’ process he was successful servers. Recently, Tuohy in Barber v. (1971), Mich appeal per- to leave denied we 169,
mitted a to amend a defective service. against Barber had commenced an action a nonresi- dent motorist. A and a of the com- plaint Secretary were served the of State and by mailed them. defendants received envelope Barber failed, include in however, the required by addressed to the defendants notice Secretary act of had been State served. We held that that defect amendment was curable under GrCR as which read 102.3, follows: are be construed to “These rules Rule determina- inexpensive just, speedy, secure consequences avoid the so as to action every
tion of which does the proceedings defect in error or any of the parties.” of rights not substantial affect such terms as any upon “At time 102.3. Rule allow in its discretion may the court it deems just, of service thereof proof that material it clearly appears unless amended, rights result substantial would prejudice whom the issued.” party said: We The defendants one. a technical defect “The expi- before of suit pendency of the
had notice sub- There was limitations. the statute ration period compliance within stantial man- form and both concerning the requirements of process. ner # #
# abandoning a plaintiff case “This when the his lawsuit defect prosecution of prosecution attention. Continuity called to his vigor. maintained with this action been ample ¿i. Ji, Vv (cid:127)U. W w of the defendants right “The substantial only is involved is the to receive right notice limita- commencement of suit within the statutory tional this the received and period; defendants they not at were all prejudiced by of notice non-delivery of State had been Secretary also served.” both commencement requiring purpose The a defendant action and *8 limitational pe- within the statutorily-prescribed plain- the (1) riods be deemed satisfied when should defendant an and the (2) tiff action commences the action within of the commencement of the learns notice, obtains such statutory period, howsoever Mich [May- 687 formal through otherwise, whether either with- plaintiff substantially complied requirement period the statutory or the defendant has attempted service be effected avoid to service.
In this case action Avas com- duly timely menced. the defective service have might While been in the sense that no invalidating, judgment could be entered Ward unless until the defect within cured, it the stat- appears was utory limitational defendants received period this notice of the action was pendency there both substantial compliance with requirement that service be effected before the expiration of limitational and that period was service. course, it not be merely
Of would sufficient commence an action. A defendant is entitled to notice of the commencement of action. Nor would it be if the defendant enough just happened to learn of casually the commencement of the action. A plaintiff obliged prosecute action due diligence either substantially to comply with the requirement that formal service be effected or, alternatively, show that prevented he was from complying the defendant’s evasive tactics.
If the defendant Ward was, indeed, avoiding service, then his affirmative to avoid actions are significantly different from actions taken by defendants in other cases who were held estopped from the bar of raising statutes limitations.1 1 See Albert Patterson (1912), v. 172 Mich (defendant’s attorney parte ex proceedings stay prevented obtained which plaintiff executing deficiency from her decree on con a land Renackowsky tract expired); before statute of limitation had Board v. Water Commissioners Detroit (1900), 122 (defendant’s led conduct to believe that a suit rights unnecessary). Similarly, enforce his see v. Stauffer *9 697 Ward v. J. Levin, Dissent on entered December order was court’s
After the plaintiffs’ process server all he did the 1968, 16, expected He went to the to do. been have could rang specified door- order, in the the addresses two bells, copies posted doors, the on knocked complaint and of the summons court’s order an- if had doubt, No someone each address. at complied with the have he would door swered imposed requirement the court’s order additional place copies usual at defendants’ be left that family therein member of his abode “with some age residing in- discretion, who is of suitable forming person the nature age and discretion But suitable served”. no one Having responded done all 1968. December 16, plaintiffs’ process and, server he do, could substantially complied plaintiffs, hence, the the court’s order. Tuohy,
Paraphrasing only substan- Barber v. right of the defendants that is involved is tial right to of the commencement of receive notice period. If limitational action within the then he received the Ward was service, requisite statutory period notice within and he Isaly Dairy Company Pittsburgh 15, (1965), App 4 Ohio 2d The Augustine (211 80); (1902), Eq v. 72, (51 Clarke 62 NJ NE2d Dawson, 68); Estoppel Limitation, 34 L and Statutes Mich (1935). Rev 1 Concededly, this ease differs eases above cited from plaintiffs the ants’ conduct. to act ference from of defend- here did not refrain action because here, attempted Plaintiffs, were act unable to but effectively Clarence Ward’s conduct. The dif- because of cases, case, important. In this in the not as cited by his plaintiffs conduct. defendant forestalled plaintiff negleets expires because If a a of limitation statute protect rights “The only himself to his then blame. remedy deny a purpose a [statutes limitations] negligent unreasonably rights.” asserting party has been who Muncey Cartage (1929), 248 Co. (Emphasis supplied.) Buzzn v. inability 64, However, plaintiff’s act failure to conduct, then effectively is defendant’s to to act the attributable raise bar should be allowed statutes of limitations. 33 Mich [May at all tbe failure prejudiced by was not to receive in hand the summons and which he success- avoided. fully order of
The December authorizing sub *10 stitute service under 1963, 105.8, GCR was entered d.2 before the substitute was effecte There is to need amend the order. court’s The defective pursuant substitute service to court’s order was no less amendable than the defective service pursu Tuohy. Barber v. ant to the in statute In the words Rule it does not 102.3, “clearly appear that material would prejudice result substantial rights party whom process issued” to enter an order permitting now serve to the defendant Clarence Ward personally.
As set forth in Barber Tuohy, v. amendments process under 102.3 if Rule an amend- back; relate ment were the action would not be allowed, barred by expiration the statute of limitation between the time service and the time of amendment. I would, remand for an accordingly, evidentiary determination of whether Clarence Ward had no- tice of the pendency of action within the stat- limitational utory period it is found that he and, did, entry an order authorizing plain- tiffs amend their defective service by promptly serving Clarence Ward personally. 2 “The in may, court which an action been commenced discretion, upon its allow be serviee made a de- reasonably
fendant other manner which calculated give him proceedings opportunity actual notice heard, if an permitting be order such service is entered before showing is made to the court that service reasonably provided cannot made manner 1963,105.8. for under other GBC rules.”