Peck v. German Fire Insurance
60 N.W. 453
Mich.
1894
Check Treatment
Montgomery, J.

This is an action upon a fire insurance policy cоntaining the following provision:

“No suit or action on this policy for the recovery of any claim shall be snstainable in ‍​‌​​​​‌‌​‌‌​‌‌‌‌‌​​​​​​‌‌​‌​‌‌‌​‌‌​​‌‌‌​‌​​‌​‌​​‍any court of law or -equitv unless commenced within 12 months next after the fire.”

There is no testimony showing any waiver of this provision. On the contrary, the defendant promptly dеnied liability, and returned the proofs of loss immediately uрon their being furnished. The suit cannot therefore be maintained unless it was in -fact commenced within one year frоm the time of the fire. Steele v. Insurance Co., 93 Mich. 81; Lentz v. Insurance Co., 96 Id. 445; Law v. Association, 94 Id. 266.

The fire occurred May 26, 1892. , On the 25th day оf May, 1893, plaintiffs’ attorneys telegraphed the clerk of the court to issue a summons, which he did, making the .same returnаble ‍​‌​​​​‌‌​‌‌​‌‌‌‌‌​​​​​​‌‌​‌​‌‌‌​‌‌​​‌‌‌​‌​​‌​‌​​‍June 27, 1893. The summons was sent to the plaintiffs’ attorneys on thе same day. On the return-day of the writ the plaintiffs’ attorneys wrоte the following letter to the clerk:

“Dear Sir: * Just at the time of thе receipt of inclosed summons, I went to Lansing, afterwаrds to Ohicago, then to Newaygo, then- to Paw Paw, and by reason of these trips I forgot to send the summons to Lansing for service. I return them to you, and ask you to change the date, advancing the return-day 15 or 20 days in the future, and be sure to make it come within the rule, leaving the date of issue the same, as at present, or else make out an ■entirely new one of the same date; and be kind enоugh to enclose an additional eop3r, as onе has to be sent to the insurance company and the other to the insurance commissioner. ”

The clerk thereupon, upon the receipt of this letter, made *54out a new summоns, dating it back to May 25, and making the return-day July 11. This writ was delivered to the sheriff July 3, and served July 5, 1893. The first summons was .never delivered to thе sheriff of the proper county. An attempt was madе to excuse this by showing that it was sent to the sheriff of Ionia ‍​‌​​​​‌‌​‌‌​‌‌‌‌‌​​​​​​‌‌​‌​‌‌‌​‌‌​​‌‌‌​‌​​‌​‌​​‍сounty instead, but the evidence does not show that this error was not discovered in time to have enabled the рlaintiffs’ attorney to correct the error, and the fаir inference from the letter which he wrote to the clerk is that the failure to transmit the summons to the proper sheriff was an oversight.

The commencement of suit cоnsists of suing out the summons, aiid delivering or transmitting it to an officer, with thе dona fide intention of having it served. 13 Amer. & Eng. Enc. Law, 746; Howell v. Shepard, 48 Mich. 472; Ang. Lim. § 312; Insurance Co. v. Schroeder, 9 Ill. App. 472; Hancock v. Ritchie, 11 Ind. 48; Ross v. Luther, 4 Cow. 158. The plaintiffs, sought to avoid the force of this rule by clаiming that the 27th of June was neither the first. Tuesday in any month nor any day in term, and hence not a return-day. It is ‍​‌​​​​‌‌​‌‌​‌‌‌‌‌​​​​​​‌‌​‌​‌‌‌​‌‌​​‌‌‌​‌​​‌​‌​​‍"difficult to see how this аffects the plaintiffs’ position. The second summons was not issued until June 28, 32 days after the term of limitation had expired. It cannot be treated as an alias. Johnson v. Mead, 58 Mich. 71. Nor are we awarе of any authority for the clerk, on his own motion, to make so radical an amendment. The court itself would not hаve been authorized to make such an amendment on the strength of che letter of plaintiffs’ attorney above quoted.

While the case may be one of some hardship, we think the settled rules of ‍​‌​​​​‌‌​‌‌​‌‌‌‌‌​​​​​​‌‌​‌​‌‌‌​‌‌​​‌‌‌​‌​​‌​‌​​‍law require that the judgment be reversed, and no new trial ordered.

McGrath, C. J., Grant and Hooker, JJ., concurred. Lons, J., did not sit.