Kuenzer v. Osborn
| Decision Date | 28 May 1970 |
| Docket Number | No. 3,Docket No. 7276,3 |
| Citation | 180 N.W.2d 298,24 Mich.App. 170 |
| Parties | Lottie KUENZER and Dewey Kuenzer and Delora Riewe, Plaintiffs-Appellants, v. Fred Carl OSBORN, Defendant-Appellee |
| Court | Court of Appeal of Michigan — District of US |
Donald G. Jennings, Manistee, for plaintiffs-appellants.
Eugene H. Christman, Ludington, for defendant-appellee.
Before R. B. BURNS, P.J., and FITZGERALD and LEVIN, JJ.
On the day before the statute of limitations expired, the plaintiff commenced this action in the Manistee county circuit court and mailed a copy of the complaint and summons to the sheriff of Muskegon county where the defendant was a resident. Two days later (I.e., after the expiration of the limitations period) the summons and complaint were received by the Muskegon county sheriff and on the same day they were personally served upon the defendant. 1
R.J.A. § 5856(3) 2 provides that the statutes of limitations are tolled for a period not longer than ninety days when the complaint is filed and a copy of the summons and complaint are in good faith 'placed in the hands of an officer' for immediate service.
The plaintiffs appeal an order of the trial court granting the defendant's motion for accelerated judgment dismissing this action. The trial court ruled that the summons and complaint were not placed 'in the hands' of an officer when they were mailed to the Muskegon county sheriff and that by the time the mailed process was delivered to the sheriff the statute of limitations had expired.
Read literally, the words 'placed in the hands of an officer' do seem to require that the process be physically placed in his hands. And, thus, while the papers may be mailed to him, the statute is not tolled until they are actually received physically in his hands. However, in State Accident Fund v. Catsman Company, Incorporated (1965), 376 Mich. 194, p. 196, 136 N.W.2d 21, p. 23, the Supreme Court of Michigan declared, albeit In obiter dictum:
'it would seem that if counsel were intent upon in good faith placing the papers in the hands of an officer for immediate service, he could have * * * mailed the papers immediately to the Genesee county sheriff under appropriate instructions.' 3
In Catsman, the action was filed on the very last day of the limitations period. Accordingly, the Court could not have thought that the mailed papers might arrive within the limitations period. In that context, Catsman's dictum is particularly strong dictum. 4
Members of the profession may have relied upon the Catsman dictum, prudently or imprudently. This in itself may be a sufficient reason, until further word from the Supreme Court, for treating mailing of the complaint and summons as the equivalent of physical delivery for the purposes of this tolling provision.
We know from the official report of the draftsmen of the revised judicature act that the words 'placed in the hands of an officer' were not necessarily chosen to differentiate between manual and mail delivery. The committee note 5 to R.J.A. § 5856 states that, 'Existing Michigan law as stated in Korby v. Sosnowski (1954), 339 Mich. 705 (64 N.W.2d 683), holds that an action at law for damages is commenced when the summons is in good faith placed In the hands of an officer for service although service is not actually made until after expiration of the statutes of limitation.' (Emphasis supplied.) 6 With that comment in mind we think it just as reasonable to infer that the words 'in the hands' were used to preserve as much as possible of 'existing Michigan law' as to infer that they were used to differentiate between manual and mail delivery. The view that the words were used to preserve to that extent existing Michigan law is strengthened by the close following additional comment of the committee:
'The section does not constitute any radical departure from presently accepted principles, but it prescribes a definite procedure to be utilized wherein counsel are informed of the necessary steps which will guarantee the tolling of the statute of limitation.' 7
Since the critical words 'in the hands of an officer' were not newly coined but were taken from prior case law, we may properly assume that the words were used in the scene in which they were understood and used in the earlier cases. 8 An examination of the early cases indicates that sending or transmitting the process to an officer was thought to be the equivalent of placing the process physically in his hands. In Dedenbach v. City of Detroit (1906), 146 Mich. 710, 711, 110 N.W. 60, the Court said that it appeared 'that the writ was not placed In the hands of an officer until December 3, 1904,' and then observed (p. 711, 110 N.W. pp. 60--61):
'This case is clearly within the rule laid down in the case of Peck v. (German Fire) Insurance Co. (1894), 102 Mich. 52, 60 N.W. 453; I.e., that 'the commencement of suit consists of suing out the summons, and delivering Or transmitting it to an officer with the bona fide intention of having it served.' Such is believed to be the rule generally in this country. See authorities cited in Peck v. Insurance Co., Supra. In Angell on Limitations, § 312, the rule is stated as follows:
"The general rule appears to be, in this country, that at the time of suing out of the writ the action commences and Either, when the writ is delivered to the sheriff or to his deputy Or when it is Sent to either of them, with a bona fide intention to be served upon the defendant, it is considered to have issued." (Emphasis supplied.)
It is recognized that in none of the three early cases 9 where language equating 'transmittal' with 'delivery' appears was it relevant to decision. The language does, however, indicate that the early writers who used the term 'in the hands' did not have in mind only manual delivery.
See footnote 11.
An additional straw in the wind is Home Savings Bank v. Fuller (1941), 299 Mich. 9, 299 N.W. 787. There the summons was issued July 13, 1939 with a return day of July 29, 1939 and was mailed to the sheriff on July 24, 1939--the day before the statute of limitations expired--and was received by him on July 26, 1939, one day after the statute expired. An alias summons was issued August 31, 1939. Plaintiff's action was held barred because of the break in continuity resulting from the delay from July 29, 1939 until August 31, 1939 in issuing an alias summons. While there was no discussion in the opinion as to whether the process mailed to the sheriff on the day before the statute would have expired and which arrived the day after it expired tolled the statute, it appears from the basis of the decision that the parties or the Court or both may have assumed that mailing tolled the limitations period.
Under Indiana law an action is not deemed commenced 'until the summons reaches the hands of the officer.' 10 In Vercillo v. Saksa (N.D.Ind.1955), 131 F.Supp. 739, process was mailed to the officer before the statute of limitations expired but did not reach him until afterwards. The United States District Court for the Northern District of Indiana, ruled on the authority of Burdick v. Green (N.Y.1820), 18 Johns. 14, 11 that it is unnecessary under Indiana law to show that the writ has been actually delivered into the hands of the sheriff, providing it is shown that the writ was actually made out and sent to the sheriff by mail, or otherwise, with a bona fide and absolute intention of having it served. This interpretation of Indiana law by the United States District Court was later adopted by an Indiana appellate court in Jensen v. Fagan (1964), 138 Ind.App. 679, 199 N.E.2d 716.
In earlier cases we have emphasized that the critical words in R.J.A. § 5856 are 'good faith' and that this tolling provision, designed to save causes of action, should be given a liberal construction. 12 The centrality of good faith was emphasized in the Catsman dictum, Supra, 376 Mich., pp. 197, 198, 136 N.W.2d 21.
On pragmatic grounds a construction that mailing suffices makes sense. This action was commenced when the complaint was filed in the city of Manistee, located 85 miles from the city of Muskegon, the county seat of the county where the defendant resided and where presumably the sheriff of that county has his office. If mailing the summons and complaint to the officer did not suffice, then it was necessary for the plaintiffs' attorney to travel 85 miles in each direction to avoid hazarding noncompliance with the statutory requirement. Even if plaintiffs' attorney had done so, he might have experienced difficulty in locating the sheriff or one of his deputies. No constructive purpose is served by an interpretation of R.J.A. § 5856 which would so inhibit plaintiffs in availing themselves of its provisions.
Construing the words 'placed in the hands of an officer' to mean that the process is placed in the officer's hands when it is mailed to him, as well as when manually delivered to him, is entirely consistent with the legislative purpose of prescribing 'a definite procedure to be utilized wherein counsel are informed of the necessary steps which will guarantee the tolling of the statute of limitation.' Such a construction is also entirely consistent with the additionally committee-note-stated purpose of establishing 'a maximum tolling period.' Where the process is mailed rather than manually delivered, the 90-day period begins to run when the process is mailed without regard to when, if ever, it reaches the officer; when the process is manually delivered, the 90-day period begins to run when so delivered. In both cases a definite and clearly defined 90-day tolling period is established. 13
Without regard to whether the process is mailed or manually delivered to the officer, the burden is on the plaintiff and his attorney to see to it that the officer or someone else 14 effectuates service within the 90-day period and whatever time remained of...
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Kuenzer v. Osborn, 17
...abide final result. T. M. KAVANAGH, C.J., and BLACK, ADAMS, BRENNAN, T. G. KAVANAGH, and WILLIAMS, JJ., concur. 1 Kuenzer v. Osborn (1970), 24 Mich.App. 170, 180 N.W.2d 298. ...