Frantz v. Detroit United Railway

147 Mich. 199 | Mich. | 1907

Moore, J.

November 29, 1904, plaintiff, by William Look, his next friend, caused a writ of' summons to be issued as commencement of suit, out of the circuit court for the county of Wayne, in the above cause. No service was made of this summons, nor was it placed in the hands of an officer for service. According to the affidavit of William Look, the plaintiff’s next friend and attorney, it was inadvertently left in some files in the attorney’s office pending negotiations for a settlement, until the 14th day of April, 1906. On that date, said attorney presented said summons, accompanied by an affidavit, to George S. Hosmer, circuit judge, who indorsed thereon the following:

“ Issue alias.

“George S. Hosmer, “Circuit Judge.

“April 14, ’06.”

A summons, purporting on its face to be an alias summons, was issued in said cause and was duly served. Defendants appeared and moved to quash the service, for the reason, among other things, that said alias writ was not issued and served in accordance with the rules and practice of the court, and because said alias summons, so served upon defendants, was irregularly issued and is void. This motion was overruled, and the case is brought into this court on writ of certiorari to review the action of Judge Hosmer therein.

In overruling this motion Judge Hosmer said:

“ As the plaintiff is an infant, and as the statute of limitation had not run as to the cause of action on which said cause is based at the time when said second, or alias, writ of summons was issued and served, to wit, on the 14th day of April, A. D. 1906, I denied the defendants’ and appellants’ motion to quash the service of said second, or alias, writ of summons in said cause, deciding that, if the last writ had no proper basis as an alias, it was not, for .that reason, void, and that, if the first suit had gone down, this second writ should be treated as a new writ for a new suit and sustained accordingly, and, the sheriff’s return showing proper service of this second writ and no showing or claim being made in contradiction to such return, the case was properly in court, and the defendants’ motion should be denied.”

It is claimed that, because of the provisions “a” and “ Cir. Ct. Rule 1, the second summons was void. At the time the second summons was duly served the statute of limitations had not run against plaintiff’s cause of action. There is nothing in the rule in conflict with the ruling of the learned circuit judge, and it is justified by what was said in deciding Axtell v. Gibbs, 52 Mich. 639.

Judgment is affirmed.

McAlvay, C. J., and Carpenter, Grant, and Hooker, JJ., concurred.