Burns v. Hirsch

• Decision Date: 04 March 1971
• Docket Number: No. 1106-A,1106-A
• Citation: 108 R.I. 251,274 A.2d 421
• Parties: Doris B. BURNS and John Burns v. Edmund A. HIRSCH. ppeal.
• Court: Rhode Island Supreme Court

Page 421

274 A.2d 421

108 R.I. 251

Doris B. BURNS and John Burns v. Edmund A. HIRSCH.

No. 1106-Appeal.

Supreme Court of Rhode Island.

March 4, 1971.

[108 R.I. 257] Joseph E. Marran, Jr., Pawtucket, for plaintiffs.

Jordan, Hanson & Curran, Paul A. Lietar, Providence, for defendant.

OPINION

POWERS, Justice.

This is a civil action for personal injuries and property damage arising out of a collision between two motor vehicles on a public highway of this state.

On April 13, 1965, plaintiff Doris B. Burns, the owner and operator of one car, was involved in a collision with the defendant operator of the second car. On November 8, 1966, Doris and her husband, John Burns, delivered copies of a summons and complaint to the sheriff for service. The defendant being a Massachusetts resident, the process was directed to the Registrar of Motor Vehicles pursuant to the provisions of then G.L.1956, § 31-7-7, as amended by P.L.1961, chap. 124, sec. 1. ¹

The record establishes that copies of the complaint and summons were served on the Registrar on November 10, 1966, and the originals were filed in the Superior Court on November 18, 1966, in accordance with the provisions of Super.R.Civ.P. 3 and 4. However, copies of said process were not mailed to defendant 'forthwith' as required by § 31-7-7.

Rather, on February 13, 1969, some 46 months after plaintiffs' cause of action accrued, they obtained an ex parte order from a Superior Court justice authorizing the completion of service by mailing copies of the complaint and summons to defendant. This order was sought and obtained in reliance on P.L.1967, chap. 78, sec. 4, which amended § 31-7-7. ²

It is of significance that this amendment became effective on May 2, 1967, more than two years after plaintiffs' action for personal injuries had accrued.

On receipt of the copies of the process, mailed pursuant to the ex parte order, defendant filed an answer challenging the sufficiency of service of process, raising the defense of the statute of limitations and denying generally the allegations in the complaint. Further, he moved to vacate the ex parte order of February 13, 1969, and pursuant to Super.R.Civ.P. 36, requested admissions as to the correctness of the travel of the litigation as hereinabove related. The plaintiffs made no answer within the time specified by defendant as authorized by said Rule 36 and defendant thereupon moved for summary judgment.

The motion to vacate and the motion for summary judgment were heard by the Superior Court justice who had entered the ex parte order on February 13, 1969. He granted the former on the ground that it had been entered by mistake, commenting that he would not have directed its entry had he been aware of the time periods involved. Holding in essence that service on defendant had not been completed within the two-year period of limitation for personal injuries, he granted defendant's motion for summary judgment on plaintiffs' claims for damages based on personal injuries, as permitted under Super.R.Civ.P. 54(b). From the entry of this judgment, plaintiffs seasonably appealed to this court.

In support thereof, they make two basic contentions, both of which are lacking in merit. The first such contention is that it was an abuse of the Superior Court justice's discretion to vacate the ex parte order of February 13, 1969, which order purported to authorize plaintiffs to complete service by mailing copies of the process almost four years after the cause of action had accrued.

The constraining answer to this contention is that, assuming the Superior Court justice had jurisdiction to do so, ³ we think it clear that it would have been an abuse of his discretion to have granted plaintiffs' motion for such an order had he been aware that the process had been filed as far back as November 18, 1966. It cannot be said to be error for the Superior Court justice to have vacated an order which should not have been entered in the first instance.

Even so, plaintiffs make the further contention that it was error for the Superior Court justice to have granted defendant's motion for summary judgment and thus deprive them of a trial on the merits of the case. In support of this contention, they rely on Rule 4 of which subsection (i) thereof provides:

'(i) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.'

Pointing to this language, plaintiffs stress that service was completed on the registrar within the two-year period of limitations, that the summons and complaint were seasonably filed and that defendant made no showing that the late notice resulted in prejudice to him.

Their reliance on Rule 4(i) is misplaced. The circumstances of the case at bar do not present a situation of an attempt to amend process or proof of service as contemplated by the rule. The rule presupposes that service has been completed, but is otherwise wanting.

While under Rule 3, the filing of the complaint tolls the statute of limitations, Rule 4(b) contemplates that process must be issued within a reasonable time after a complaint has been filed, absent a showing...