Conrad v. Ward

190 N.W.2d 361, 33 Mich. App. 687, 1971 Mich. App. LEXIS 1823

• Court: Michigan Court of Appeals
• Decided: May 21, 1971
• Docket: Docket 7056
• Status: Published

Opinions

R. B. Burns, J.

After several unsuccessful attempts to locate defendant Clarence Gr. Ward in order to serve him with the complaint and summons, plaintiffs were granted a court order pursuant to GCR 1963, 105.8.¹ The court order authorized substituted service of process by tacking the summons and complaint to the front doors of certain specified buildings, “and, by leaving a summons and a copy of the complaint and this order at defendant’s usual place of abode with some member of his family therein residing, who is of suitable age and discretion, informing that person of the nature of the process served”. Although the papers were tacked to the doors of the buildings specified in the court order, they were not personally served upon any member of defendant’s family. Noncompliance with the court order resulted in an order quashing service of process. Subsequently a summary judgment was entered since the statute of limitations had run on plaintiffs’- claim.²

Plaintiffs argue that their “substantial compliance” with the court order authorizing substituted service of process was leg-ally sufficient.

The court rule herein under consideration is relatively new, and was designed to give flexibility to the system by providing a means of service, to be determined by the court, upon any defendant subject to the jurisdiction of the courts of this state. See 1 Honigman & Hawkins, Mich Court Rules Annotated (2d ed), pp 112, 113.

The trial judge was correct in his refusal to recognize a form of service that complied with only one-half of his order. It should be noted that the trial judge altered plaintiffs’ request from “or, in the alternative”, to read “and”, in order to require both a conspicuous posting of papers “and” service upon some member of the family. Plaintiffs’ failure to comply with the court’s order which was fair and reasonable under the circumstances precludes their requested relief. See Meier v. Meier (1961), 362 Mich 653.

In Barber v. Tuohy (1971), 33 Mich App 169, the plaintiff filed an action against a nonresident motorist. The Secretary of State was served with a summons and a copy of the complaint. A copy of the complaint was mailed to the defendants and received by them. Barber failed to include in the envelope addressed to the defendants the notice that the Secretary of State had been served as required by the act. This failure was a technical defect that the Court held could be cured by amendment.

In the present case we do not have a technical defect but a substantial defect in that the defendant was not served either in person or by the method authorized by the judge.

Affirmed. Costs to defendants.

Lesinski, C. J., concurred.

1 “The court in which an action has been commenced may, in its discretion, allow service of process to be made upon a defendant in any other manner which is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard, if an order permitting such service is entered before service of process is made upon showing to the court that service of process cannot reasonably be made in the manner provided for under other rules.”

2 MCLA § 600.5805(7) (Stat Ann 1962 Eev § 27A.5805[7]); MCLA § 600.5856(3) (Stat Ann 1962 Eev § 27A.5856[3]).