223 N.W.2d 113 | Mich. Ct. App. | 1974
MAXMAN
v.
GOLDSMITH
Michigan Court of Appeals.
*657 Milan & Miller, P.C. (Hayim I. Gross, of counsel on appeal), for plaintiffs.
Harvey, Kruse & Westen, P.C. (by James N. Martin), for defendant.
Before: V.J. BRENNAN, P.J., and R.B. BURNS and R.L. SMITH,[*] JJ.
R.B. BURNS, J.
On February 10, 1969, plaintiff Ida Maxman was injured in an automobile accident allegedly caused by the deceased defendant James Lihov. Six days later, on February 16, 1969, James Lihov died.
On April 15, 1969, an administratrix was appointed for the Lihov estate. She conducted the affairs of the estate for the next ten months. On October 21, 1969, she filed a petition for allowance of her final account, for her fees, for a determination of heirs, and for an assignment of the residue. Finally, on February 9, 1970, the administratrix was discharged and the estate closed.
Plaintiffs were unsuccessful in negotiating a settlement with Lihov's insurance company and filed suit on January 28, 1972. Plaintiffs gave the summons and complaint to the sheriff for service and mailed copies to the insurance company.
The insurance company had an attorney file a general appearance for the defendant.
In the meantime plaintiffs discovered that Lihov had died and petitioned the probate court for a special administrator for his estate. Ralph Goldsmith was appointed special administrator of the *658 estate. Plaintiffs then filed an amended complaint that reflected the substitution of the special administrator as the defendant.
Evidently the insurance company had not been aware that Lihov had died when they entered a general appearance for him because its next move was to file motions to quash service of process and strike both complaints, claiming an absence of personal jurisdiction.
The motions were granted. Plaintiffs appeal and we affirm.
The case is controlled by MCLA 701.19; MSA 27.3178(19) and MCLA 708.18; MSA 27.3178(428). They have the effect of barring claims, such as plaintiffs', made against an estate more than three months after it has been closed. Young v Moore, 127 F Supp 265 (ED Mich, 1954), Melvin v Reading, 346 Mich. 348; 78 NW2d 181 (1956), In re Curzenski Estate, 384 Mich. 334; 183 NW2d 220 (1971), and Wright v Estate of Treichel, 47 Mich. App. 626; 209 NW2d 806 (1973).
Plaintiffs claim that defendant by filing a general appearance waived any defense of lack of personal jurisdiction. GCR 1963, 116.2 requires that a defense of lack of jurisdiction over the person be made in the responsive pleading or motion first filed, or it will be waived.
An appearance is neither a motion nor a responsive pleading; the question was timely raised by the defendant. Continental Ins v B & B Sales, 34 Mich. App. 499; 192 NW2d 126 (1971), and Manufacturers Construction Co v Covenant Investment Co, 43 Mich. App. 123; 204 NW2d 54 (1972).
Affirmed. Costs to defendant.
All concurred.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
