Brashers v. Jefferson

• Decision Date: 24 September 1975
• Docket Number: Docket No. 21655
• Citation: 64 Mich.App. 540,236 N.W.2d 132
• Parties: James BRASHERS, Plaintiff-Appellant, v. John Wesley JEFFERSON, Defendant-Appellee. 64 Mich.App. 540, 236 N.W.2d 132
• Court: Court of Appeal of Michigan — District of US

Page 132

236 N.W.2d 132

James BRASHERS, Plaintiff-Appellant, v. John Wesley JEFFERSON, Defendant-Appellee.

Docket No. 21655.

64 Mich.App. 540, 236 N.W.2d 132

Court of Appeals of Michigan.

Sept. 24, 1975.

Released for Publication Dec. 24, 1975.

Leave to Appeal Denied Dec. 29, 1975.

[64 MICHAPP 542] Ford, Kriekard, Staton & Allen by William E. Decker, Kalamazoo, for plaintiff-appellant.

J. William Dark, Kalamazoo, for defendant-appellee.

Before McGREGOR, P.J., and D. E. HOLBROOK and KAUFMAN, JJ.

D. E. HOLBROOK, Judge.

This appeal involves an automobile negligence case brought by plaintiff James Brashers, for damages against defendant John Wesley Jefferson. Plaintiff appeals from the granting[64 MICHAPP 543] of defendant's motion for an accelerated judgment based on the running of the statute of limitations.

The pertinent facts applicable to the issues raised on this appeal appear in the record which discloses that the accident happened on April 6, 1970. Plaintiff commenced a suit in Kalamazoo County Circuit Court on October 30, 1972. In June of 1973, plaintiff served on the Michigan Secretary of State the summons and complaint. A registered letter was sent to the defendant at a Muncie, Indiana address, and the registered letter was returned marked 'Could Not Be Delivered'. Attorney J. William Dark entered his appearance for the defendant in July of 1973. Upon learning that the registered letter was not served on the defendant, Mr. Dark requested of the court permission to withdraw his appearance, which was granted.

On August 8, 1973 a second suit with duplicate complaint was filed by plaintiff. On August 10, 1973 plaintiff filed proof of service showing that defendant had been personally served at Muncie, Indiana on August 7, 1973. The first suit was dismissed by the trial court on September 19, 1973, pursuant to GCR 1963, 102.5, since service was not obtained within 180 days of filing the complaint. The first complaint having been dismissed, the plaintiff's attorney filed a motion on October 18, 1973 to set aside the dismissal of the first complaint. On February 21, 1974 an opinion and order denying the motion were entered.

On November 19, 1973 an amended complaint had been filed, alleging that the accident occurred on private property. On February 19, 1974 a third suit was filed in the same manner and a summons issued. On March 19, 1974 an affidavit of service on the defendant was filed, showing personal service[64 MICHAPP 544] on March 13, 1974 in Muncie, Indiana. On March 29, 1974 a motion for accelerated judgment was filed by the defendant in the third suit based on the claim that the statute of limitations had run. An opinion was filed by the trial court, granting defendant's motion, and accelerated judgment was entered on September 9, 1974.

Plaintiff appeals as of right, and first asserts that the statute of limitations was tolled during the entire period of defendant's absence from the state, pursuant to M.C.L.A. § 600.5853; M.S.A. § 27A.5853. Plaintiff also asserts that the statute of limitations was tolled because he was materially hindered in effecting service of process on the defendant by means of either the nonresident motorist statute, if applicable, or by personal service.

M.C.L.A. § 600.5853; M.S.A. § 27A.5853 reads as follows:

'If any person is outside of this state at the time any claim accrues against him the period of limitation shall only begin to run when he enters this state unless a means of service of process sufficient to vest the jurisdiction of a Michigan court over him was available to the plaintiff. If after any claim accrues the person against whom the claim accrues the person against whom the claim accrued is absent absence in excess of 2 months at a time shall not be counted as any part of the time limited for the commencement of the action unless while he was outside of this state a means for service of process sufficient to vest the jurisdiction of a Michigan court over him was available to the plaintiff.'

Plaintiff claims that the nonresident motorist statute is not applicable since the accident occurred on private property and not a public highway. The plaintiff further claims that the statute of limitations was tolled because the plaintiff had no means of service sufficient to vest jurisdiction of a Michigan court over the defendant. In Support of [64 MICHAPP 545] this claim, plaintiff asserts that available means of service are not considered sufficient to vest jurisdiction in a Michigan court where plaintiff shows that he has been materially hindered in effecting service, and was unable to locate defendant. Plaintiff also asserts that if the court is not able to acquire jurisdiction, theoretical permissible means for acquiring jurisdiction are not sufficient.

Defendant answers and asserts that under M.C.L.A. § 600.705(2); M.S.A. § 27A.705(2), ¹ plaintiff could have served defendant, since there existed a relationship between the defendant and the state based on the doing of an act within the state by the defendant, resulting in an action for tort. Additionally, defendant could have been served under the nonresident motorist statute by service upon the Michigan Secretary of State and either personal service or service by registered mail, with actual receipt by defendant of the service by registered mail required. Defendant also asserts that service under the non-resident motorist statute is not precluded in this case because the first two complaints filed by the plaintiff alleged that the accident occurred on a public thoroughfare, rather than on private property. For these reasons, defendant claims that the statute of limitations had run its course on plaintiff's action.

Of importance to this appeal, plaintiff's attorney filed a brief in the trial court and attached an affidavit which we set forth in full as follows:

'William E. Decker, being duly sworn deposes and says:

'1. That he is attorney for plaintiff in the above entitled action;

'2. That plaintiff originally filed a complaint on October[64 MICHAPP 546] 30, 1972, (File No. 724--192C) and summons was issued and copies of same were given to process server for service but plaintiff was unable to locate the defendant and obtain service locally at the last known address of 735 Skinner, Kalamazoo, Michigan;

'3. That plaintiff's attorneys continued efforts to locate the defendant including an inquiry with the Credit Bureau of Kalamazoo, Inc. who reported by letter in January 1973, that the defendant was from the Muncie, Indiana area and had married his ex-wife, Gladys, there but that no information could be obtained by the Credit Bureau of Muncie, Indiana office as to his present whereabouts and that the Muncie office would put a watch card in its file;

'4. That on June 20, 1973, plaintiff obtained a Muncie, Indiana address on the defendant and on that date service was made on the Secretary of State and notice of service on the Secretary of State along with copies of the summons and complaint were sent to the defendant at the Muncie, Indiana address by registered mail;

'5. That the registered letter was returned marked 'COULD NOT BE DELIVERED';

'6. That Attorney J. William Dark entered an appearance on behalf of the defendant on July 23, 1973, after having been notified by plaintiff's attorney of service on the Secretary of State;

'7. That on July 27, 1973, Attorney Dark moved to withdraw his appearance after learning that no receipt had been obtained on the registered letter to the defendant and on September 10, 1973, an order allowing withdrawal of appearance was entered;

'8. That on August 7, 1973, plaintiff obtained personal service on the defendant in Muncie, Indiana and an affidavit of service was filed on August 10, 1973;

'9. That on August 8, 1973 plaintiff filed a new complaint and summons was issued (File No. B733--00--242 NI);

'10. That this new complaint and summons was filed after the individual had been sent to Muncie to obtain service on the first complaint and summons when affiant became aware of GCR (1963), 102.5 providing for [64 MICHAPP 547] dismissal without prejudice when service is not obtained within 180 days of filing a complaint;

'11. That on September 19, 1973, an order dismissing the first complaint without prejudice was entered;

'12. That in early October 1973, plaintiff sent the same individual who had obtained service on the defendant in August to Muncie a second time to obtain service on the new summons and complaint, but service could not be obtained;

'13. That on October 18, 1973, plaintiff filed a motion to set aside the dismissal of the first complaint;

'14. That on February 21, 1974 an opinion and order of the court were issued denying the motion;

'15. That in early February 1974, plaintiff learned of a second individual who had known the defendant in Muncie, Indiana and thought he could locate the defendant and that on February 6, 1974, this individual was sent to Muncie, Indiana to obtain service on the second complaint and summons;

'16. That this individual discovered that the defendant was hospitalized in Ball Memorial Hospital, Muncie, Indiana but was unable to obtain service in the hospital;

'17. That affiant obtained the defendant's address in Muncie by telephone from the hospital administrative office;

'18. That on February 18, 1974 plaintiff filed a third complaint and summons (File No. C 741 00 337 NI) since the 180 days subsequent to filing the second complaint and summons on August 8, 1973, had expired;

'19. That affiant sent the third complaint and summons to the Delaware County Sheriff's office for service of process on the defendant;

'20. That the sheriff's return of service dated March 13, 1974, showing that service was made on the defendant at 1613 N. Brady, Muncie, Indiana was filed with the court on March 19, 1974.'

A supplemental affidavit of plaintiff's attorney was also filed and is set forth as follows:

[64 MICHAPP 548] 'William E. Decker...