Lud v. Sammons

216 N.W.2d 778, 391 Mich. 416, 1974 Mich. LEXIS 143

Opinions

M. S. Coleman, J.

This is the framework of the litigation. Plaintiff filed suit one year and three months after the accident. After the cause of action was dismissed (about three years after the accident), plaintiff filed a motion to reinstate approximately two years ten months later. This totals five years and nine months between the accident and the motion for reinstatement. The statute of limitations for such cases is three years, but was tolled while suit was pending and before dismissal. MCLA 600.5805(7); MSA 27A.5805(7). It is now over eight years since the accident.

On the face of this record, plaintiff’s failures to move his claim forward cannot now be condoned without great prejudice and possible irreparable harm to the defendants. One key witness is dead and the five and one-half years between the accident and the motion to reinstate would dim the memories of most of us. Also, defendants have understandably destroyed the file and would be at a disadvantage in trying to reconstruct it.

Contrary to the holding of the Court of Appeals, GCR 1963, 528 does not apply in the instant matter. It is our opinion that the motion for reinstatement was not timely brought.

The Court of Appeals is affirmed in part and reversed in part.

T. M. Kavanagh, C. J., and Swainson and Williams, JJ., concurred with M. S. Coleman, J.