73 Mich. 326 | Mich. | 1889
The summons in this case was issued July 3, 1886, out of the Wayne circuit court, and was returned September 21 thereafter, personally served on both defendants. Plaintiffs filed their declaration in assumpsit, October 7, 1886, and gave notice that they would show on the trial two notes, — one given at Marquette, Mich., dated October 1, 1877, for $2,069.76, due three months from date, payable to plaintiffs, and signed by defendants, who then composed the firm of E.
Plaintiffs asked the court to charge the jury—
“ 1. To render a verdict against both defendants in favor of plaintiffs.
“ 2. If the jury find that the summons issued October 20, 1883, failed of service on the defendant Mead by the default or neglect of the sheriff, then you will find for the plaintiffs against both defendants.”
More than six years elapsed between the maturity of the last ’note and the beginning of this suit. The plaintiffs, however, claim their cause of action has been preserved, and their right to bring this suit continued to them, by the action they have taken under section 8723, Mow. Stat., which contains the following provisions:
“If, in any action, duly commenced within the time limited in this chapter, and allowed therefor, the writ or declaration shall fail of a sufficient service or return, by any unavoidable accident, or by any default or neglect of the officer to whom it is committed, or if the writ be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if after a verdict for the plaintiff the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on a writ of error, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determina*329 tion of the original suit, or after the reversal of the judgment therein.”
Plaintiffs claim, and their testimony shows, that they commenced a suit against the defendants upon the same notes and acceptances on October 30, 1883, and before the statute ran against any of them, and the writ was made returnable November 7, 1883. It was personally served in October on Scudder, and was returned by the sheriff, November 17, 1883, defendant Mead “not found.” Four pluries writs were thereafter issued for Mr. Mead. The fourth was taken out March 39, 1884, and was served upon defendant Mead April 36 thereafter. In that suit thus commenced the plaintiffs filed their declaration, November 36, 1883. January 3, 1884, defendant Scudder pleaded the general issue, and on July 8 Mead filed his plea and notice, which were the same as in this suit. Nothing was ever paid by the defendants upon any of the claims, and the plaintiffs in that case had judgment for the amount thereof. Both defendants .took an appeal to this Court, where the judgment was reversed, and a new trial granted, a majority of the Court holding that—
“The interval between the successive writs interrupted the continuity of the action, so that the limitation became a bar to recovery.” See Johnson v. Mead, 58 Mich. 73 (34 N. W. Rep. 665).
Since the opinion in that case was given, and on October 16, 1885, remittitur was filed in the circuit court, where, upon the new trial, judgment was obtained against defendant Scudder for the amount of plaintiff’s claims, and of discontinuance as to defendant Mead, and on the next day, on stipulation of plaintiff’s attorney and Scudder’s attorney, the judgment against Scudder was set aside, and the plaintiffs, on motion of their attorney, and by consent of the attorney for Scudder, discontinued the case, and within a year thereafter com
Counsel for the defendants, on the other hand, insist-that, while the statute in question is to be liberally construed, its provisions only apply to -such cases as may be said to be within its terms, and do not apply to or permit the revival of a cause of action which has been defeated by a plea of the statute of limitations, as in the case-which was before us in the first suit, and was reversed because of the limitation of the statute. In other words, that there is nothing in the statute which makes the plea used in different suits between the same parties, for identically the same cause of action, good at one time and bad at another; that the section referred to by its terms applies to such actions as have been “ duly commenced within the time limited in this chapter,” and hence any action not so commenced cannot be revived, even though it failed because of some one or more of the reasons mentioned in the section the plaintiffs invoke
That the case in which Mead first appeared, and which came to this Court by writ of error, was not begun until March 29, 1884, ahd not until after the statute had become a bar; that, although the action had previously been commenced against Scudder, it had been allowed to go down as against Mead by reason of the breaking of the continuity of the writs (see 58 Mich. 68); that the-beginning of the suit, March 29, 1884, must be treated as a new suit against Mead, and which was long after the-statute began to run against plaintiffs’ claims; and defendants further insist that plaintiffs voluntarily discontinued their suit, and that such proceedings as were had
We think the positions above mentioned, taken by counsel for the defendants, must prevail. Axtell v. Gibbs, 52 Mich. 639, 640 (18 N. W. Rep. 395, 396); 1 Dunlap, Pr. 119; Wood, Lim. 625; Delaplaine v. Crowninshield, 3 Mason, 329.
The testimony showing the default or neglect of the sheriff was not competent for the purpose of impeaching his return. Plaintiffs have their remedy for any such dereliction of duty, if it existed.
The judgment must be affirmed.
See points of appellants’ counsel for testimony claimed to show such default or neglect.