Moore v. Flower
| Decision Date | 24 January 1983 |
| Docket Number | Docket No. 66416 |
| Citation | 121 Mich.App. 235,329 N.W.2d 35 |
| Parties | Helen Ann MOORE and Nathaniel Moore, Plaintiffs-Appellants, v. Debra Susan FLOWER, Sonja B. Williams, Defendants, and City of Detroit, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Posner, Posner & Posner by Samuel Posner and Gerald F. Posner, Detroit, for plaintiffs-appellants.
George W. Crockett, Jr., Acting Corp. Counsel and Dennis Burnett, Asst. Corp. Counsel, Detroit, for defendant-appellee City of Detroit.
Before KAUFMAN, P.J., and HOLBROOK and BEASLEY, JJ.
On Remand
Plaintiffs were injured in a traffic accident at an intersection in the City of Detroit on February 16, 1977. A complaint was filed in the Wayne County Circuit Court alleging negligence on the part of Debra Flower, driver of the automobile which struck the plaintiffs' car, and Sonja Williams, owner of the same car. Defendants' answer averred the affirmative defense that there was no sign or signal at the intersection where the accident occurred which required defendant Flower to stop.
On February 15, 1978, attorneys for both plaintiffs and defendants stipulated to add the City of Detroit as a party defendant pursuant to GCR 1963, 206.1. The parties apparently sought indemnification for defendants Flower and Williams, and the addition of a principal tortfeasor defendant. They claimed the city failed to maintain traffic signs at a controlled intersection. The trial court signed an order adding the City of Detroit as a defendant on December 15, 1978. Plaintiffs filed a second amended complaint on June 11, 1979, adding the City of Detroit as a defendant. This was more than two years after the accident. On July 3, 1979, the City moved for accelerated judgment pursuant to GCR 1963, 116.1(5), alleging that the two-year statute of limitations in M.C.L. Sec. 691.1411(2); M.S.A. Sec. 3.996(111)(2) had run. The trial court granted the defendant City's motion.
Plaintiffs appealed. This Court affirmed the accelerated judgment in Moore v. Flower, 108 Mich.App. 214, 310 N.W.2d 336 (1981). Plaintiffs appealed to the Supreme Court. In lieu of granting leave to appeal, that Court remanded the case to this Court "to address the question of whether the order adding the party defendant was sufficient in itself to commence the action against the added defendant". 414 Mich. 897, 323 N.W.2d 6 (1982).
We hold that the trial court's order adding the City of Detroit as a defendant was not sufficient to commence the action against the City. The action commenced when the amended complaint was filed.
The basic rule for commencing an action is that "[a] civil action is commenced by filing a complaint with the court". GCR 1963, 101. The rule for permissive joinder of defendants, GCR 1963, 206.1, does not expressly alter the basic rule, nor should it alter the basic rule by implication. It would not unnecessarily prejudice the rights of the party seeking to add a party if a timely amended complaint were required. On the other...
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