176 Mich. 326 | Mich. | 1913
The object of this proceeding is to obtain a construction of subdivision “e” of Circuit Court Rule 28, relative to service of papers by mail.
The material and undisputed facts which present the question are, briefly, as follows: An action was pending and at issue in the circuit court of Mason county between A. E. Cartier Sons Company, plaintiff, and Palmer-Stevenson Construction Company,
“By depositing the same in the post office in the city of Ludington in an envelope securely sealed and plainly addressed to said Robert J. Quail, at Ludington, Mich., and that the postage thereon was fully prepaid to the place of destination.”
The case was duly placed on the calendar of the April term of said court, and upon the first day of said term plaintiff’s attorney moved the court to strike the cause from the calendar for the reason that no legal notice of trial had been served upon him, filing an affidavit stating that he first received the notice in question by taking it from his box in the post office on the morning of March 18, 1913; also stating that his office was open with a clerk in charge from 9 a. m. until 5 p. m. March 15th and 17th, and that he was personally present in his office a large portion of March 15th until 6 p. m. The court, after hearing arguments of counsel for the respective parties, struck the case from the calendar, for the reason that the same had not been properly noticed for trial.
In answer to an alternative writ of mandamus issued from this court, respondent states that the
“When the attorney for the adverse party resides or has his office in the same city, village or township as the attorney making the service, papers shall be served as follows:
“(a) By delivering the same to the attorney personally.
“(b) Or, by leaving the same in his office with his clerk, or with a person having charge thereof.
“(e) Or, when no person is to be found in his office, by leaving the same, between the hours of six in the morning and nine in the evening, in some suitable and conspicuous place in such office.
“(d) Or, if the office be not open, so as to admit of service therein, then by leaving the same at the residence of the attorney with some person of suitable age and discretion.
“(e) Or, by depositing the same in the post office of the city, village or township, inclosed in an envelope, plainly addressed to such attorney, with postage fully prepaid.”
This rule is a substitute for former Circuit Court Rule 7, which made no provision for service by mail when the attorneys resided or had their place of business in the same city, village, or township. It is a rule of general application for service of papers between members of the bar of the same locality in matters wherein they represent opposing parties in the circuit court. The saving of time, convenience,
No such conditions precedent are imposed on serving by mail. There is nothing in subdivision “e,” or the rule in its entirety, to suggest that previously provided methods must be exhausted before mailing is resorted to. With improved and perfected mail facilities, attended by prompt distribution or prompt delivery, service by mail can now well be recognized as reasonably safe and satisfactory, when the message is plainly addressed and postage prepaid. The use of the disjunctive conjunction “or” in that connection naturally indicates an alternative, implying discretion, giving a choice between delivery to the attorney personally, delivery to a clerk or person in charge of his office, and mailing to his address with the postage prepaid; those three authorized methods of service being specified in the rule without any restrictive contingencies. To make service by mail contingent upon inability to make service by the preceding specified methods would nullify subdivision “e,” for the possi
At the time of respondent’s return to the alternative writ issued herein, and final submission of the proceedings in this court, the circuit court term, at which the order striking the case from the calendar was made, had passed. To now make the alternative order peremptory would be ineffectual and a vain thing. Respondent’s return was in good faith, and, as we are advised, chiefly to obtain an authoritative construction of the rule in question. The proceeding legitimately raises that question, and we have accordingly considered and decided it. Mandamus is a discretionary writ and will not issue in all cases, even where a prima facie right to it may be shown.
At this time, and for the reason stated, the alternative writ will not be made peremptory. No costs are allowed to either party.