Buscaino v. Rhodes

• Decision Date: 03 December 1969
• Docket Number: Docket No. 5624,No. 3,3
• Citation: 174 N.W.2d 61,20 Mich. App. 329
• Parties: Ross C. BUSCAINO and Jeanne Buscaino, Plaintiffs-Appellants, v. Terrance RHODES and Patricia Rhodes, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 61

174 N.W.2d 61

20 Mich.App. 329

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

Docket No. 5624.

Court of Appeals of Michigan, Division No. 3.

Dec. 3, 1969.

Released for Publication Feb. 13, 1970.

Rehearing Denied Jan. 13, 1970. ^*

Harold J. Smith, Coldwater, for appellants.

Richard F. Biringer, City Atty., Coldwater, for appellees.

Before J. H. GILLIS, P.J., and LEVIN and BRONSON, JJ.

J. H. GILLIS, Presiding Judge.

The cause of action in this case arose out of an automobile accident on November 13, 1964.The suit was commenced on November 7, 1967, six days before the expiration of the statute of limitations, ¹ and on that date a copy of the summons and complaint were placed in the hands of the sheriff (for service).At that time counsel for plaintiffs advised the sheriff that one of the defendants was temporarily outside the jurisdiction and requested service not to be made on either defendant until the absent one returned.

RJA § 5856² provides as follows:

'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 casethe statute shall not be tolled longer than 90 days thereafter.'(Emphasis supplied.)

Service was made on January 2, 1968, within the 90 day period commencing with the date the summons and complaint were given to the sheriff.On January 22, 1968, defendants' attorney moved for accelerated judgment pursuant to GCR 1963, 116.1(5) on the ground that the statute of limitation had not been tolled but had expired because the summons and complaint had not been given to the sheriff For immediate service.The trial court granted the motion in an order dated March 26, 1968.On April 12, 1968, plaintiffs moved to set aside the order and from a denial of that motion they appeal.

The question is whether a copy of the summons and complaint were placed in the hands of the sheriff for immediate service.The 90 day tolling period of section 3 is not to be construed as a gratuitous extension of time in which a party, provided he places a copy of the summons and complaint in the hands of an officer, may further exercise his discretion as to when service will be made.The import of the statute is to facilitate notice to a defendant and to stop the running of the statute of limitation for 90 days to allow defendant to be served by the officer.See committee comment to RJA § 5856.Thus, a plaintiff upon whose claim a statute of limitation is running will not be penalized for the time it takes an officer to serve a defendant, up to 90 days.

In this caseplaintiffs' attorney instructed the sheriff to withhold service until further notice because, as stated by affidavit, he'wanted both defendants served at the same time in order to prevent said defendant from avoiding service.'One defendant was capable of being served and alternative means were available to serve the defendant who was outside the jurisdiction.A copy of the summons and complaint were not placed in the hands of an officer for immediate service and the statute of limitation was not tolled.

Any act or declaration that is to postpone the effect of a statute of limitation is to be clearly scrutinized.Glass v. Drieborg(1941), 296 Mich. 30, 295 N.W. 547.We deem a strict construction of the term 'for immediate service' to be consistent with other cases in which § 5856 has been applied or construed.SeeSera v. Eberlein(1968), 11 Mich.App. 139, 160 N.W.2d 735;DiGiovanni v. Yacenick(1968), 9 Mich.App. 590, 157 N.W.2d 785;Constantini v. Hofer(1967), 5 Mich.App. 597, 147 N.W.2d 433;Meyers v. Geer(1966), 4 mich.App. 392, 144 N.W.2d 854;Bush v. Watson(1966), 3 Mich.App. 94, 141 N.W.2d 707;State Accident Fund v. Catsman Company, Incorporated(1965), 376 Mich. 194, 136 N.W.2d 21.

I have carefully considered Hoseney v. Zantop(1969), 17 Mich.App. 141, 169 N.W.2d 124(leave to appeal deniedJune 23, 1969, 382 Mich. 765)a case which reaches a contrary result.We are not, however, bound by that case, seeHackett v. Ferndale City Clerk(1965), 1 Mich.App. 6, 133 N.W.2d 221.Nor is the fact that leave to appeal was denied of any relevance.Such denials are acts of judicial discretion and do not constitute affirmances on the merits.People v. Berry(1968), 10 Mich.App. 469, 157 N.W.2d 310.As I am unpersuaded by its reasoning, I decline to follow Hoseney.

Affirmed.Costs to appellees.

BRONSON, Judge (concurring).

While concurring in the result reached here, I cannot agree that the reasoning and result of this Court's decision in Hoseney v. Zantop(1969), 17 Mich.App. 141, 169 N.W.2d 124, should not apply.In Hoseneythe Court stated:

'Nor does the statute require that the copy placed in the hands of the officer have been delivered for service by the officer himself.The provision in the statute requiring that the process be delivered to 'an officer for immediate service' is complied with if the process is in good faith delivered to the officer for The purpose of achieving immediate service.

'The purpose of providing a 90-day tolling period is to allow additional time within which to effect service.That purpose is better served by a construction of the statute that allows a plaintiff to proceed as this plaintiff did then a construction which would have required the officer in this case to have taken action which would not have effected earlier service on Zantop and which might well have made impossible any service at all on Zantop within the 90-day tolling period and the few days remaining of the limitational period.The law does not require purposeless or self-defeating action.'

There the Court used a good faith test:

'The revised judicature act's 90-day tolling provision requires good faith action by the plaintiff.The good faith of the plaintiff in this case is shown by her delivery of duplicate copies of the process to the officer and the private process server and the diligent efforts of the private process server.'

In the present casewe find no such evidence of good faith.As Judge Levin notes in dissenting:

'Hoseney can, of course, be distinguished from the present case.In Hoseney a private process server was at all times, both immediately before and after delivery of the process to the officer, attempting to effectuate service, making constant inquiry whether the defendant Zantop in that case, who was out of the jurisdiction, had as yet returned.As soon as he returned, both defendants were simultaneously served. * * *'

Here there is no record of such diligent good faith as that found in Hoseney.The trial judge in the present case stated in a written opinion granting defendant's motion for accelerated judgment:

'While physical possession of a copy of the complaint and summons was given to the officer on November 7th, 1967, the instructions accompanying such delivery negate any present intention that the same was done in good faith for immediate service thereof.'

Indeed plaintiffs' attorney admitted in his answer to motion that

'* * * (Y)our attorney states that the complaint and summons were placed in the hands of the sheriff on November 7, 1967; that at the time your attorney informed the sheriff to hold said papers for the reason that upon information and belief your attorney was informed that one of the Defendants was out of the jurisdiction of the State of Michigan.'

Judge Levin states in his dissent:

'I recognize that in this casethe plaintiffs' answer to the defendants' motion for summary judgment did not assert fear that service upon the defendant who admittedly was at all times within this State might cause the other defendant to stay outside the jurisdiction until the statute of limitations had expired.However, the affidavit in support of the petition for rehearing * * * did so allege. * * *'

It is my opinion that, while plaintiff might have been allowed to show evidence of good faith at the time the motion was made for accelerated judgment, we should not allow them to remain silent and later assert a Hoseney defense of good faith after judgment has been rendered on the motion.

I concur with Judge Gillis in the result but without negating Hoseney v. Zantop(1969), 17 Mich.App. 141, 169 N.W.2d 124.

LEVIN, Judge (dissenting).

Within the time provided in the applicable 3-year statute of limitations, ¹the plaintiffs commenced this action on November 7, 1967 to recover for injuries suffered in an automobile accident which occurred on November 13, 1964.Copies of the summons and complaint were delivered to the sheriff on the same day the action was commenced, but the defendants were not served until January 2, 1968, a date beyond the expiration of the 3-year limitational period but within the 90-day tolling period provided by RJA § 5856(3):

'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 casethe statute shall not be tolled longer than 90 days thereafter.'(Emphasis supplied.)M.C.L.A. § 600.5856(Stat.Ann.1962 Rev. § 27A.5856).

The defendants filed a motion for accelerated judgment asserting that the plaintiffs cannot avail themselves of the 90-day tolling period because the summons and complaint were not 'in good faith * * * placed in the hands of an officer for immediate service.'The defendants alleged that at the time the plaintiffs' attorney delivered the summons and complaint he told the officer not to attempt to make service and to hold the papers for further instructions.

In response, the plaintiffs' attorney filed an answer conceding that he had asked the officer to hold the papers and stating that he did so 'for the reason that upon information and belief your attorney was informed that one of the defendants was...