Wright v. Treichel's Estate

• Decision Date: 25 June 1973
• Docket Number: No. 1,Docket No. 8910,1
• Citation: 209 N.W.2d 806,47 Mich.App. 626
• Parties: Ward WRIGHT and Viola Wright, Plaintiffs-Appellees, v. ESTATE of Arthur TREICHEL, Deceased, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 806

209 N.W.2d 806

47 Mich.App. 626

Ward WRIGHT and Viola Wright, Plaintiffs-Appellees, v. ESTATE of Arthur TREICHEL, Deceased, Defendant-Appellant.

Docket No. 8910.

Court of Appeals of Michigan, Division No. 1.

June 25, 1973. ^*

Released for Publication Aug. 24, 1973.

Jeannette A. Paskin, Plunkett, Cooney, Rutt & Peacock, Detroit, for defendant-appellant

William G. Sinn, Jr., Southfield, for plaintiffs-appellees.

Before T. M. BURNS, P.J., and HOLBROOK and McGREGOR, JJ.

ON REHEARING

T. M. BURNS, Presiding Judge.

This case, originally reported at 36 Mich.App. 33, 193 N.W.2d 394 (1971), is before us on rehearing relative to a statute of limitations issue. Pursuant to our order of November 30, 1971, the trial court held an evidentiary hearing on the question and at the conclusion thereof granted defendant's motion for an accelerated judgment on the ground that the statute of limitations barred plaintiffs' claim. M.C.L.A. § 600.5852; M.S.A. § 27A.5852; GCR 1963, 116.1(5).

The facts of the instant case may be briefly summarized as follows: On July 21, 1966, plaintiffs were injured in an automobile accident in which the driver of the other vehicle, Arthur Treichel, was killed. Letters of administration appointing an administrator for the Treichel estate were issued on September 25, 1967. On July 2, 1969, plaintiffs filed a complaint against the estate of Arthur Treichel ¹ seeking damages of $160,000 allegedly arising from the automobile accident. The administrator of the estate died after serving only 3 1/2 months, consequently the summons and complaint were served on the administrator's attorney July 5, 1969.

We held that the attorney-client relationship between the administrator and his attorney had ceased with the death of the administrator and, therefore, plaintiffs did not obtain jurisdiction over the estate by serving the administrator's attorney.

In addition we ruled that inasmuch as the existence of an administrator is essential for obtaining jurisdiction over an estate, the statute requiring the filing of all claims against the estate within two years from the date the letters of administration are issued is tolled during the time an estate is without an administrator. Since the administrator of the Treichel estate served only 3 1/2 months, we concluded that plaintiffs had an additional 20 1/2 months to commence suit after a successor administrator was appoined.

After the death of the original administrator and Unknown to this Court at the the case was first decided, the attorney for the original administrator petitioned the probate court for the appointment of a successor administratrix, and a successor administratrix was appointed on December 2, 1969. There is a dispute as to whether the attorney for the original administrator could legally petition for the appointment of a successor administratrix. However, the fact remains that a successor administratrix was appointed, had served, and the estate closed on July 23, 1970.

Plaintiffs, relying on Buscaino v. Rhodes, 385 Mich. 474, 289 N.W.2d 202 (1971), assert that since their complaint was filed within two years after the letters of administration were first issued, M.C.L.A. § 600.5852; M.S.A. § 27A.5852 does not operate to bar their suit. We disagree.

In Buscaino a complaint was filed six days prior to the expiration of the statute of limitations. Service of process was not effectuated until two months later. It was held that the filing of the complaint, not the service of process, was determinative of when an action was timely commenced and since the complaint was timely filed, the statute of limitations did not bar the suit.

However we do not read Buscaino as standing for the proposition that the filing of a complaint will indefinitely suspend the operation of a statute of limitations. Rather, we construe Buscaino as...