Uchwat v. U-Haul Rent-A-Truck

28 Mich. App. 427 | Mich. Ct. App. | 1970

Per Curiam.

Defendants appeal from a denial of a motion for accelerated judgment.

The record discloses that an alleged cause of action for personal injury arose on August 23, 1965, when the defendants herein were residents of Wayne County. On August 19, 1968, five days prior to the expiration of the statute of limitations,¹ the plaintiffs’ counsel started suit in the Wayne County Circuit Court and placed a summons and a copy of the complaint in the hands of the sheriff of Wayne County for immediate service.

On August 29,1968, plaintiffs’ counsel was notified by tbe office of the sheriff of Wayne County that both defendants resided in Oakland County and that service could not therefore be made by that office. On that date, after learning’ this information, plaintiffs’ counsel mailed a copy of the summons and the complaint to the sheriff of Oakland County for immediate service upon the defendants. The original summons and complaint were left with the sheriff of Wayne County and the copies sent to the sheriff of Oakland County did not bear the seal of the Wayne County Circuit Court nor the signature of the clerk of the court. The documents were received by the sheriff of Oakland County on September 3, 1968, and served upon the defendants that same day.

Defendants’ first argument on appeal is that the statute of limitations was not tolled under MCLA § 600.5856 (Stat Ann 1962 Rev § 27A.5856)² when plaintiffs’ counsel placed the summons and complaint in the hands of the sheriff of Wayne County, who could not serve defendants because they were residents of Oakland County.

At the time suit was commenced, the plaintiffs believed that the defendants were Wayne County residents, as they were at the time of the accident, having moved to Oakland County prior to the day suit was filed. On August 19, 1968, prior to the running’ of the statute of limitations, plaintiffs’ counsel filed a copy of the summons and complaint with the sheriff of Wayne County for immediate service.

The trial court found that “there had been a continuity of process and due diligence on the part of plaintiffs acting herein in good faith”. This Court is of the opinion that the above facts established sufficient compliance with the “good faith” requirements of the statute to support the trial court’s finding. The fact that personal service could not reasonably be accomplished by the sheriff of Wayne County is not fatal to the operation of the tolling statute. Bratton v. Trojan Boat Co. (1969), 19 Mich App 236.

The determination as to whether the statute is tolled must be made as of the time the papers are placed in the hands of the sheriff for service, and should not depend on what occurs after this takes place. The statute does not require the summons to be placed in the hands of the sheriff of the county in which the defendant resides. If any of defendants’ officers listed in GCR 1963, 105.4 had entered Wayne County and had been served during the 90 day period, there would be good service. It can even be argued that the Wayne County Sheriff could obtain service on the defendant corporations under MCLA § 600.582 (Stat Ann 1962 Rev § 27A.582).³

Defendants’ second argument regarding the insufficiency of the service of process by the sheriff of Oakland County, due to the failure to obtain the Wayne County Circuit Court seal and the Wayne County Clerk’s signature, lacks merit as that issue was not raised in defendants’ first responsive pleading and is thus waived.

The present court rules make no provision for the filing of a special appearance to attack service of process as permitted under the previous court rules. Under the present rules, the issue must be raised in the party’s first responsive pleadings or by motion filed not later than the first responsive pleadings or it is waived. (See GCR 1963, 111.3, 116.1, 116.2.)

Affirmed. Costs to plaintiffs.

1 MCLA § 600.5805 (Stat Ann 1962 Rev § 27A.5805) provides for a three-year statute of limitations.

2 The tolling statute provides:

“The statutes of limitations are tolled when

“(1) the complaint is filed and a copy of the summons and complaint are served on the defendant, or when

“(2) jurisdiction over the defendant is otherwise acquired, or when “(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for im-

mediate service, but in this case the statute shall not be tolled longer than 90 days thereafter”.

3 The statute provides: “The sheriff and his deputies (a) are officers of the circuit court for the purpose of executing the process of the court; (b) may execute all lawful orders and process of the court in any county of the state”.