Ciotte v. Ullrich

• Decision Date: 04 June 1934
• Docket Number: No. 31.,31.
• Citation: 267 Mich. 136,255 N.W. 179
• Parties: CIOTTE et ux. v. ULLRICH et al.
• Court: Michigan Supreme Court

267 Mich. 136

255 N.W. 179

CIOTTE et ux.

v.ULLRICH et al.

No. 31.

Supreme Court of Michigan.

June 4, 1934.

Appeal from Circuit Court, Macomb County, in Chancery; Neil E. Reid, Judge.

Suit by Enrico Ciotte and wife against Leslie Ullrich, individually and as executor and trustee of the estate of Paul J. Ullrich, deceased, and another. From a judgment of dismissal, plaintiffs appeal.

Affirmed.

Argued before the Entire Bench.

Adrian David Rosen and Arthur H. Ratner, both of Detroit, for appellants.

Lungerhausen, Weeks, Lungerhausen & Neale, of Mt. Clemens, for appellees.

EDWARD M. SHARPE, Justice.

Plaintiffs are the owners of the Fountain Bathhouse in Mount Clemens, Mich. They gave a second mortgage to Leslie Ullrich who, in turn, assigned the same to his brother, Paul J. Ullrich. February 9, 1932, Laura Ullrich, widow of Paul J. Ullrich, acquired title to the mortgage by assignment from the executors of the estate of Paul J. Ullrich. Upon default, she foreclosed the mortgage and bid in the property at sheriff's sale June 8, 1932, for $2,617.52.

June 7, 1933, two days before the equity of redemption would expire, plaintiffs filed their bill of complaint for relief under Act No. 98, Pub. Acts 1933, against Leslie Ullrich as an individual and as executor of the estate of Paul J. Ullrich, deceased. July 5, 1933, the trial court permitted plaintiffs to amend their bill of complaint to show the true mortgagee and to add Laura Ullrich as one of the defendants.

At the time the bill of complaint was filed there were unpaid taxes on the property amounting to $3,853.62, a first mortgage of $6,845, unpaid interest in the sum of $479.16. During the year 1932 plaintiffs had received rental from the premises in the sum of $1,800, no part of which had been used for upkeep or for the payment of any indebtedness on the premises.

Plaintiffs contend that the suit is in the nature of an in rem action and had actually been instituted before the expiration of the period of redemption, while the defendants moved to dismiss upon the grounds that as to Laura Ullrich the court had no jurisdiction under Act No. 98, Pub. Acts 1933, since the proceedings as to her had not been commenced before the expiration of the period of redemption, and, further, that plaintiffs had not made out a case for equitable relief.

The trial court dismissed the bill of complaint on both grounds, and plaintiffs appeal.

The plaintiffs' contention that this is an in rem action is without foundation. The nature of the relief asked is an injunction, which is a purely personal remedy and can be granted only against those persons of whom the court has actual jurisdiction.

Act No. 98, Pub. Acts 1933, requires that the suit be instituted before the expiration of the period of redemption. As to defendant Laura Ullrich, the suit was not instituted until after the expiration of the period of redemption, and the fact that institution of suit against her took place by way of amendment of the original bill does not affect this result.

‘The running of the statute of limitations is not interrupted by the commencement of an action against the servant of the real party in interest, against a person no longer a party in interest, against a person in the wrong capacity, or against the wrong party.’ 37 C. J. 1062.

‘The general rule is well settled that, where new parties defendant are brought in by amendment, the statute of limitations continues to run in their favor until thus made parties. The suit cannot be considered as having been commenced against them until they are made parties.’ 37 C. J. 1066.

These statements are well borne out by the decisions. In the early case of Miller v. M'Intyre, 31 U. S. (6 Pet.) 61, at page 64, 8 L. Ed. 320, the court held: ‘Until the defendants were made parties to the bill, the suit cannot be considered as having been commenced against them. It would be a novel and unjust principle, to make the defendants responsible for a proceeding of which they had no notice; and where a final decree in the case could not have prejudiced their rights.’

The foregoing case was cited with approval in United States v. Martinez, 195 U. S. 469, at page 473, 25 S. Ct. 80, 81, 49 L. Ed. 282, in which the court also said: ‘For obvious reasons, a party brought into court by an amendment, and who has, for the first time, an opportunity to make defense to the action, has a right to treat the proceeding, as to him, as commenced by the process which brings him into court.’

In Leatherman v. Times Company, 88 Ky. 291, 11 S. W. 12,3 L. R. A. 324, 21 Am. St. Rep. 342, it was held tht an action commenced against a certain defendant as a corporation could not be sustained on an amendment made after the statute of limitations had run, alleging that the defendant was a partnership instead of a corporation, and substituting the individual partners as defendants, although the original summons was served upon one of them as the business manager of the supposed corporation, and an answer was filed in the name of the company before the statute had run without...