137 Mich. 1 | Mich. | 1904
(after stating the facts).
‘ ‘ If, in any action duly commenced within the time limited in this chapter and allowed therefor, * * * the writ be abated, or the action otherwise avoided or defeated, * * * for any matter of form, or if, after a verdict for the plaintiff, the judgment shall be arrested, or * * * 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 determination of the original suit, or after the reversal of the. judgment therein.” 3 Comp. Laws, § 9738.
The only suit determined within one year prior to the commencement of this suit was that upon the common counts, which was determined in May, 1897, and this suit was commenced in April, 1898, — within one year after the final determination of the former suit. This suit was not •a determination upon the merits. The merits were not entered upon. The plaintiff and her counsel believed that they could try the merits of the controversy in an action of assumpsit, instead of tort. No testimony was taken. After the opening statement, the court held that the plaintiff’s suit was planted upon a mistaken view of the law; in other words, plaintiff had mistaken her form of remedy.
We think the statute clearly covers such a case. Our ■statute of limitations was borrowed from that of Massachusetts. It was said by the supreme court of that State, speaking through Chief Justice Shaw:
“This is a remedial statute, both in its enacting and qualifying clauses, and should have such construction as will best carry into effect the intent of the legislature; * * * and the presumption [of payment] does not arise if the creditor resorts to legal diligence to recover his debt within the time limited. ”
That court therefore held that, where the first letters of administration were held to be a nullity, and a second suit was commenced within one year after that decision, and
It is not an infrequent occurrence for attorneys to make a mistake in the form of the remedy. Where they have acted in good faith, the- statute should be held to apply. So, where an action upon, contract was defeated on demurrer to a declaration in a suit at law, a bill in equity was held maintainable under this statute. Taft v. Stow, 167 Mass. 363 (45 N. E. 752); Phelps v. Wood, 9 Vt. 399; Spear v. Newell, 13 Vt. 288.
The judgment is affirmed.