Twomley v. Arnold, 112
| Decision Date | 03 February 1964 |
| Docket Number | No. 112,112 |
| Citation | 125 N.W.2d 860,372 Mich. 230 |
| Parties | Richard TWOMLEY, Plaintiff and Appellant, v. Alfred Lester ARNOLD, Jr., Defendant and Appellee. |
| Court | Michigan Supreme Court |
Leitson, Dean, Dean & Abram, by Max Dean, Flint, for plaintiff and appellant.
Smith, Brooker & Harvey, Bay City, for defendant and appellee.
Before the Entire Bench.
Plaintiff, a resident of Shiawassee county, commenced this action against defendant doctor in Cheboygan county on October 19, 1962. Personal service was that day obtained on defendant in that county. Involved was malpractice, which allegedly occurred in October of 1960.
On November 2, 1962, defendant filed a motion to dismiss, supported by affidavits and deposition, on the ground that the court did not have jurisdiction of the person of defendant because he, also, was a resident of Shiawassee county. On December 10, 1962, plaintiff filed a motion to transfer the case to the Shiawassee county circuit court because, inter alia, the statute of limitations had then run on the cause of action.
It was competent, under the Michigan Court Rules then in effect, for the court to determine the jurisdictional question on motion, supported by affidavits. (Court Rule No. 18, § 1[a] [1945]).
C.L.S.1956, § 610.1 (Stat.Ann.1959 Cum.Supp. § 27.641), in effect when this suit was commenced, provided that actions founded upon wrongs shall be commenced in the county where one of the parties shall reside when suit is commenced, or in the county where the cause of action arose. Plaintiff's declaration alleged that he resided in Shiawassee county and that the malpractice occurred therein. The court found as a fact that defendant also was, and at the time of commencement of suit had been, a resident of Shiawassee county. This is fully supported by the undisputed proofs. Under the above cited statute and its predecessors, where neither party resided in the county where the action was commenced, and the cause of action did not arise there, the court lacked jurisdiction and a motion to dismiss on that ground should be granted. Moore v. Epstein, 258 Mich. 425, 242 N.W. 779.
On December 31, 1962, the court, for the reason above considered, signed an order dismissing the case, which was filed January 3, 1963. On January 7, 1963, plaintiff commenced suit against defendant on the same subject matter in Shiawassee county. On January 18, 1963, plaintiff filed his claim of appeal to this Court in this case in the Cheboygan court.
Plaintiff concedes that under the 'old practice', if defendant was a resident of Shiawassee county, the case was properly dismissed by the Cheboygan circuit court for lack of jurisdiction. Plaintiff urges, however, that under the new rules (G.C.R.1963, 105.9 and R.J.A., § 701; [C.L.1948, § 600.701, P.A.1961, No. 236 (Stat.Ann.1962 Rev. § 27A.701)]) the residence aspects of this case would no longer present a jurisdictional question. See, also, R.J.A. §§ 1601, 1645 (C.L.1948, §§ 600.1601, 600.1645 [Stat.Ann.1962 Rev. §§ 27A.1601, 27A.1645]), stating that provisions as to venue are not jurisdictional. Plaintiff next points out that G.C.R.1963, 14, makes the new rules effective January 1, 1963, and applicable to all proceedings after that date in actions then pending and urges that, therefore, they should govern on this appeal at this time. Plaintiff quotes from Chovan v. E. I. Du Pont De Nemours & Co., D.C., 217 F.Supp. 808, the following:
'Provisions of the Michigan Revised Judicature Act relating to jurisdiction are not restricted to causes of action arising after January 1, 1963, its effective date.'
Plaintiff's difficulty here is not that his cause of action arose before that date, but, rather, that his suit was commenced, was dismissed and...
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