193 N.W.2d 394 | Mich. Ct. App. | 1971
WRIGHT
v.
ESTATE OF TREICHEL
Michigan Court of Appeals.
Moore, Sills, Poling & Wooster (by William G. Sinn and Thomas A. Law), for plaintiffs.
Plunkett, Cooney, Rutt & Peacock (by Jeannette A. Paskin), for defendant.
Before: T.M. BURNS, P.J., and HOLBROOK and McGREGOR, JJ.
T.M. BURNS, P.J.
Plaintiffs were injured in an automobile accident on July 21, 1966, in which the driver of the other car, Arthur Treichel, was killed. Plaintiffs filed the complaint in this action on July 2, 1969, against Arthur Treichel's estate[1] alleging $160,000 in damages.
On July 5, 1969, a copy of the complaint and summons was served upon George Johnson, the probate judge of Gladwin County and the alleged *36 attorney for the estate. The administrator of the estate had died before the commencement of this action and no new administrator had been named.
On August 18, 1969, George Johnson entered a general appearance in this matter on behalf of the estate. On September 4, 1969, defendant moved for an accelerated judgment for the reason that service of process upon George Johnson was not proper and, therefore, the circuit court was without jurisdiction.
The trial court denied defendant's motion for an accelerated judgment. On May 19, 1970, this Court granted leave to appeal. We will discuss the issues raised by the defendant in the order presented.
1. Whether George Johnson, an attorney who entered a general appearance on behalf of the defendant estate, had authority to act on behalf of the estate after the administrator died.
Plaintiffs contended that George Johnson had authority to represent the estate because he had represented the deceased during his lifetime and had represented the deceased's estate prior to the administrator's death. Defendant contends that neither of these facts gave Johnson such authority.
First, it is clear that Johnson's prior representation of Arthur Treichel during his lifetime did not give him the authority to act on behalf of the estate. The rule in Michigan is that the authority of an attorney is revoked and the attorney-client relationship is terminated when the client dies. Doty v. Dexter (1886), 61 Mich. 348; Courser v. Jackson (1909), 159 Mich. 119. See generally, 7 CJS, Attorney and Client, § 113, p 945.
Second, it is also our opinion that the death of the administrator terminated the authority of Johnson to act further on behalf of the estate. It was *37 the administrator who hired Mr. Johnson and it was for him, not the estate itself, for whom Mr. Johnson was employed. The death of the administrator terminated the attorney-client relationship and Mr. Johnson no longer had any authority to act on behalf of the estate. Therefore, since Mr. Johnson had no official capacity with respect to the estate, the service of process upon him was defective and no jurisdiction over the estate was obtained.
Plaintiffs contend, however, that if they could not serve the attorney for the estate in this case, they would be without legal remedy since there was no administrator conducting the affairs of this estate. However, MCLA § 704.51 (Stat Ann 1962 Rev § 27.3178[302]) provides for the appointment of successor fiduciaries where a fiduciary dies.[2] The statute provides in part:
"The successor shall be appointed in the manner prescribed by this act for the appointment of fiduciaries."
MCLA § 702.51 (Stat Ann 1962 Rev § 27.3178 [121]) provides for the appointment of administrators. Under that section, plaintiffs are entitled to petition the probate court for the appointment of an administrator. Therefore, plaintiffs' contention that unless allowed to serve the estate's attorney they were without remedy is without merit. They simply had to petition the court for the appointment of a successor administrator who, once appointed, could be served with process.
We therefore hold that the service of process upon Mr. Johnson, an attorney for the estate, was defective and no jurisdiction over the estate was obtained.
*38 2. Whether the general appearance by George Johnson on behalf of the estate waived the defects in the service of process.
Plaintiffs contend that even if the service of process did not obtain jurisdiction over the estate, the general appearance by Mr. Johnson on behalf of the estate waived the defects in service thereby subjecting the estate to the jurisdiction of the circuit court.
While a general appearance by a defendant or his attorney usually waives defects in service of process,[3] it is generally the rule that an unauthorized appearance is ineffective for any purpose. See Hanzes v. Flavio (1920), 234 Mass 320 (125 N.E. 612); Cf. Fisher v. Fisher (1923), 224 Mich. 147. See generally 6 CJS, Appearances, § 25, p 68.
In the instant case there could be no authority, either expressed or implied, enabling Johnson to enter an appearance for the estate because the administrator, from whom such authority must come, had expired. As a consequence, Johnson's appearance was ineffective to bind the estate for any purpose. Therefore, the defects in the service of process were not waived.
Since we have held that the service of process upon Mr. Johnson was defective and that the general appearance on behalf of the estate did not cure the defects, the trial court's denial of the motion for accelerated judgment must be reversed.
Plaintiffs have, however, requested this Court to rule that the statute of limitations has been tolled during the course of these proceedings.
MCLA § 600.5856 (Stat Ann 1962 Rev § 27A.5856) demands that before the statute is tolled, *39 jurisdiction must be acquired over the defendant in some form. However, under MCLA § 600.5852 (Stat Ann 1962 Rev § 27A.5852) the plaintiffs had two years from the date on which letters of administration were filed to commence suit.
In the instant case the administrator died after having served only 3-1/2 months. Since we have already held that an administrator is essential to obtaining jurisdiction over an estate, it is our conclusion that, in this case, the statute is tolled during the time when the estate is without an administrator. Therefore, in the instant case, the plaintiffs will have 20-1/2 months to start suit after a new administrator is appointed subject only to the six-year limit on all claims against an estate provided for in MCLA § 708.20 (Stat Ann 1962 § 27.3178 [430]).
Reversed.
All concurred.
NOTES
[1] It should be noted that an estate is not a proper party to a lawsuit but rather the administrator or executor is the proper party plaintiff or, defendant.
[2] The term "fiduciary" includes an administrator of an estate under MCLA § 704.1 (Stat Ann 1962 Rev § 27.3178[251]).
[3] See Austin v. Burroughs (1886), 62 Mich. 181; Nelson v. McCormick (1952), 334 Mich. 387.