Buscaino v. Rhodes

• Decision Date: 27 August 1971
• Docket Number: No. 3,A,3
• Citation: 385 Mich. 474,189 N.W.2d 202
• Parties: Ross C. BUSCAINO and Jeanne Buscaino, Plaintiffs and Appellants, v. Terrance RHODES and Patricia Rhodes, Defendants and Appellees. pril Term.
• Court: Michigan Supreme Court

Page 202

189 N.W.2d 202

385 Mich. 474

Ross C. BUSCAINO and Jeanne Buscaino, Plaintiffs and Appellants, v. Terrance RHODES and Patricia Rhodes, Defendants and Appellees.

No. 3, April Term.

Supreme Court of Michigan.

Aug. 27, 1971.

Harold J. Smith, Coldwater, for plaintiffs and appellants.

Richard F. Biringer, Coldwater, for defendants and appellees.

Before the Entire Bench.

SWAINSON, Justice.

The compliance with the statute of limitations is the single issue before the Court in this matter.

The case arose out of an automobile accident which occurred on November 13, 1964. Plaintiffs filed their complaint on November 7, 1967, six days prior to the expiration of the statute of limitations. On the same date, a copy of the summons and complaint were placed in the hands of a deputy sheriff. At that time counsel for plaintiffs advised the deputy sheriff that one of the defendants was outside the State of Michigan and he told the sheriff not to serve either defendant until the absent defendant returned. Service of process was made on January 2, 1968.

On January 22, 1968, defendants moved for accelerated judgment on the grounds that the statute of limitations had not been tolled. The trial court granted the motion and accelerated judgment was filed on March 26, 1968, based on M.C.L.A. § 600.5856 (Stat.Ann.1962 Rev. § 27A.5856). This section states:

'The statutes of limitations are tolled 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 immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.'

Plaintiffs moved to set aside the judgment on April 12, 1968, and the trial court denied the motion. The Court of Appeals affirmed, with Judge Levin dissenting. ¹ We granted leave to appeal. (383 Mich. 807).

The Michigan Constitution of 1963 provides in art. 6, § 5:

'The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state. The distinctions between law and equity proceedings shall, as far as practicable, be abolished. The office of master in chancery is prohibited.'

This provision is basically the same as that found in the Constitutions of 1850 ² and 1908. ³ However, there is a significant difference which is relevant in the context of this case. In the Address to the People, at the conclusion of the 1961 Constitutional Convention (on August 1, 1962), it is stated concerning art. 6, § 5:

'This is a revision of Sec. 5, Article VII, of the present constitution. In addition to existing powers of the court, power is conferred to simplify both practice and procedure.' ⁴

Thus, it is clear that there is recognition of the need to grant the Supreme Court broad powers to make rules which will tend to increase the efficient administration of justice at a time when our courts are seriously overburdened. Our Court has recognized in numerous cases the validity of the rule-making power, both under our present and former Constitutions. We have recognized that art. 6, § 5, Michigan Constitution of 1963, and its predecessors, must be liberally construed in order to aid in the efficient administration of our judicial system.

In Jones v. Eastern Michigan Motorbuses (1939), 287 Mich. 619, 630, 283 N.W. 710, 719, our Court stated:

'While courts are very generally authorized by statute to make their own rules for the regulation of their practice and the conduct of their business, a court has, even in the absence of any statutory provision or regulation in reference thereto, inherent power to make such rules. Fullerton v. Bank of the United States, 1 Pet. (26 US) 604, 7 L.Ed. 280; Van Benschoten v. Fales, 126 Mich. 176, 85 N.W. 476; Wyandotte Rolling Mills (Co) v. Robinson, 34 Mich. 428. This power is, however, not absolute but subject to limitations based on reasonableness and conformity to constitutional and statutory provisions. Ward v. Chamberlain, 2 Black (67 US) 430, 17 L.Ed. 319; Youngs v. Peters, 118 Mich. 45, 76 N.W. 138.'

In Perin v. Peuler (1964), 373 Mich. 531, 541--542, 130 N.W.2d 4, 10, the Court stated:

'The function of enacting and amending judicial rules of practice and procedure has been committed exclusively to this Court (Const.1908, art 7, § 5; Const.1963, art 6, § 5); A function with which the legislature may not meddle or interfere save as the Court may acquiesce and adopt for retention at judicial will. (Emphasis added) * * * Preliminary to that look, we advert to what was said above; that the rules of practice and procedure include the rules of evidence:

"The judicial function constitutionally empowers The courts to make their own rules of procedure, including rules of evidence (subject only to specific constitutional limitations). Virtually all of the original rules of evidence were invented by the courts. But as the courts usually failed to change rules which proved undesirable, the legislature from time to time made reformatory alterations by statute,--thus obscuring historically the natural function of the courts.

"In recent times, the just prerogative of the courts to make their own rules of procedure has been vindicated in professional opinion; and a healthy movement to relegate generally procedure to the courts has long been under way. That this prerogative of the courts includes the power to formulate and to alter the rules of evidence ought not to be doubted.' (1 Wigmore on Evidence (3d ed.), § 7, 1962 pkt. supp. p. 51; adding these quotations to text.)

'The italics above are those of the pocket supplement text writer.'

The broad power of the Supreme Court to make rules affecting procedure in all courts of our State has been consistently recognized. See, for example, Dauer v. Zabel (1967), 9 Mich.App. 176, 156 N.W.2d 34, and Brown v. Porter (1968), 13 Mich.App. 6, 123 N.W.2d 709.

As a general rule, statutes of limitation are considered to be procedural. Bournias v. Atlantic Maritime Co., Ltd., 220 F.2d 152 (CA 2, 1955). Our Court has provided under GCR 1963, 101: 'A civil action is commenced by filing a complaint with the court.' However, the legislature in M.C.L.A. § 600.5856, states: 'The statutes of limitations are tolled 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 immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.'

Thus, we have a seeming conflict between the Court Rule and the legislative act, and we are not unmindful of the Authors' Comments contained in 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp. 34, 35, or the Committee Comments following. We are not bound by Committee Comments. We can, indeed we must, read both GCR 101 and M.C.L.A. § 600.5856 according to the plain language of each, giving effect to the meaning of the words as they ought to have been understood by those who adopted them.

First, GCR 101 means that an action is commenced by the filing of a complaint. It has that meaning in the context of the statutes of limitations, as well as every other context.

Second, M.C.L.A. § 600.5856 has nothing to do with when an action is commenced. It has to do with when statutes of limitations are tolled.

'To toll the statute of limitations means to show facts which remove its bar of the action.' Black's Law Dictionary (4th ed), p 1658.

Since there can be no question of 'removing' the bar of the statute of limitations unless and until, in the absence of tolling the statute would have barred the action, there can be no issue of 'tolling' in any case where the action is commenced within the statutory period of limitation.

It is only when the action is not commenced within the statutory period--as determined by consulting the date of claim, the date of filing the complaint and a calendar--it is only when a Prima facie bar of the statute appears, that tolling comes into play.

What then is the meaning to be extended to M.C.L.A. § 600.5856? We find that C.L.1948, § 609.19 was repealed by the adoption of the Revised Judicature Act. That statute provided:

'If, in any action, duly commenced within the time limited in this chapter, and allowed therefor, the writ or declaration shall fail of a sufficient service or return, by any unavoidable accident, or by any default or neglect of the officer to whom it is committed, or if the writ be abated or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if after a verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on a writ of error, the plaintiff may commence a new action for the same cause, at any time within 1 year after the abatement or other determination of the original suit, or after the reversal of the judgment therein; and if the cause of action does by law survive, his executor or administrator may, in case of his death, commence such new action within the said 1 year.'

M.C.L.A. § 600.5856 (Stat.Ann.1962 Rev. § 27A.5856) merely provides a substitute for the repealed C.L.1948, § 609.19. It deals only with prior lawsuits between the parties which have not adjudicated the merits of the action. This understanding of M.C.L.A. § 600.5856 conforms with the scheme of the five preceding sections of...