Krontz v. Estovez

• Decision Date: 28 August 1973
• Docket Number: Docket No. 14503,No. 3,3
• Citation: 49 Mich.App. 30,211 N.W.2d 213
• Parties: Delilah KRONTZ and James Krontz, Plaintiffs-Appellants, v. Jose V. ESTOVEZ, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 213

211 N.W.2d 213

49 Mich.App. 30

Delilah KRONTZ and James Krontz, Plaintiffs-Appellants, v. Jose V. ESTOVEZ, Defendant-Appellee.

Docket No. 14503.

Court of Appeals of Michigan, Division No. 3.

Aug. 28, 1973.

Released for Publication Oct. 24, 1973.

Leave to Appeal Granted Jan. 28, 1974.

James Thomas Sloan, Jr., Sloan & McCarthy, Kalamazoo, Stanley Everett, Battle Creek, for plaintiffs-appellants.

Charles E. Ritter, Stapleton-Adams, P.C., Kalamazoo, for defendant-appellee.

Before R. B. BURNS, P.J., and T. M. BURNS and PETERSON,* JJ.

T. M. BURNS, Judge.

The facts of this case are not in dispute. On July 16, 1967, the plaintiffs were involved in an automobile collision with the defendant. As a result of the accident, plaintiffs filed a complaint against the defendant on April 24, 1970, 2 months before the statute of limitations expired. A copy of the summons and complaint was given to the sheriff for service on May 3, 1970. However, on May 5, 1970, the sheriff's office returned the complaint and summons unserved with the explanation that the defendant had left Michigan in 1967 or 1968 and had taken up residence at Aguero #11, Buenos Aires, Argentina. In the meantime, on August 27, 1971, the Michigan Supreme Court decided the case of Buscaino v. Rhodes, 385 Mich. 474, 189 N.W.2d 202 (1971), which held that the filing of a complaint and not the service of process tolled statutes of limitations. Subsequently, on November 12, 1971, plaintiffs mailed a copy of the summons and complaint to the defendant at Lavelle 1430 in Buenos Aires and to the Michigan Secretary of State. A few days later both the defendant and the Secretary of State acknowledged receipt of the documents. Before trial, defendant moved for an accelerated judgment and for an order quashing the service of process and dismissing plaintiffs' complaint. The circuit court granted the defendant's motion on the grounds that 'to wait 18 months to serve process, nearly 16 months after the running of the statute of limitations, by a method available to the plaintiffs throughout such periods of time invalidates the service under the non-resident statute obtained in this case'. Plaintiffs appeal.

At the time plaintiffs filed their complaint in 1970, M.C.L.A. § 600.5856; M.S.A. § 27A.5856 provided that statutes of limitations were tolled when: (1) a complaint was filed and a copy of the summons and complaint were served on the defendant; (2) jurisdiction was otherwise obtained over the defendant; or (3) tolled for a maximum of 90 days past the expiration date where the complaint and summons were in good faith put into the hands of an officer for immediate service before the statute expired.

In the case at bar, plaintiffs had 3 years from the date of the accident in which to bring their action for the personal injuries allegedly incurred. M.C.L.A. § 600.5805(7); M.S.A. § 27A.5805(7). However, during this period of time plaintiffs did not serve a copy of the summons and complaint upon the defendant, obtain jurisdiction over the defendant in any other manner, as for example through the longarm statute pertaining to nonresident motorists, M.C.L.A. § 257.403; M.S.A. § 9.2103, or accomplish service of process during the additional 90-day period. Therefore it is readily apparent that pursuant to the statute in effect at the time the complaint was filed, plaintiffs would be foreclosed from bringing suit for the failure to timely serve the defendant with notice of the suit via a copy of the summons and complaint.

As previously recounted, Buscaino v. Rhodes, Supra, held that M.C.L.A. § 600.5856; M.S.A. § 27A.5856, discussed in the 2 preceding paragraphs, was superceded by GCR 1963, 102, and that the filing of a complaint wiht the court and not the service of process tolled statutes of limitations. Applying Buscaino retroactively plaintiffs argue that their suit was timely commenced in that the complaint was filed 2 months before the 3-year statute of limitations expired thus permitting service of process on the defendant at any time, in this case 16 months after the statute of limitations expired.

Assuming but not deciding that Buscaino may be retroactively applied to suits where the complaint was filed before its decisional date in August of 1971, we are nonetheless convinced plaintiffs are foreclosed from pursuing their claim against the defendant. In Wright v. Estate of Treichel, 47 Mich.App. 626, 629, 209 N.W.2d 806, 808 (1973), where a similar issue concerning the effect of Buscaino was presented, we stated:

'(W)e do not read Buscaino as standing for the proposition that the filing of a complaint will indefinitely suspend the operation of a statute of limitations. Rather, we construe Buscaino as holding that once a complaint has been filed within the time limits prescribed by a statute of limitations, service of the summons and complaint may be made within a reasonable time after the period provided in the statute for timely commencing an action. To interpret Buscaino otherwise, that is, permitting service of process at any future date without limitation, would inescapably create the very problem sought to be eradicated by statutes of limitations, namely, the litigation of stale claims.'

The foregoing interpretation of Buscaino is buttressed by the fact that the Michigan Supreme Court, apparently recognizing that a literal reading of the case would allow a plaintiff to file a complaint within the applicable statute of limitations and then wait Ad infinitum before serving process, added several provisions to GCR 1963, 102, effective July 1, 1972, which state that no summons is valid for longer than 180 days and that actions are to be dismissed without prejudice where a defendant was not served or did not file any pleading within 180 days from the date the complaint was filed. Thus in suits arising after July 1, 1972, the question posed by the instant case relating to the timeliness of service of process has been resolved. We note in passing that although the 180-day provisions of the court rule were not in effect at the time plaintiffs commenced their action, service of process was not effectuated on the defendant within 180 days after the complaint was filed.

Applying Buscaino to the case at bar our question narrows to whether the plaintiffs effectuated service...