Schimmel v. Scruggs

182 N.W.2d 94, 26 Mich. App. 333, 1970 Mich. App. LEXIS 1452

Opinion

Per Curiam.

Defendants appeal from a denial of a motion for accelerated judgment, based upon the running of the statute of limitations.

**

The record discloses that plaintiffs’ cause of action for personal injuries arose on January 20, 1966. At that time, all of the parties to this appeal were residents of Macomb County. On January 16, 1969, five days before the expiration of the statute of limitations, the plaintiffs’ attorney started suit in the Ma-comb County Circuit Court and left a summons and a copy of the complaint at the clerk’s office for pickup by the sheriff. The summons and complaint were received on January 20, 1969, by the Macomb County Sheriff.

On January 22,1969, the sheriff returned the summons and complaint to the plaintiffs’ attorney and filed a return of non-service.

Two weeks later the summons and complaint were mailed to the Wayne County Sheriff who received them and served them on defendants in Wayne County on February 13, 1969.

MCLA § 600.5856 (Stat Ann 1962 Rev § 27A.5856) provides as follows:

“The statute of limitations are tolled when

“(1) the complaint is filed and a copy of the summons and complaint are served on the defendant, or when

“(2) jurisdiction over the defendant is otherwise acquired, or when,

“(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.” (Emphasis supplied.)

Defendants argue first that the placing of the summons and complaint in the hands of a sheriff of a county in which the defendants do not reside does not toll the statute of limitations, and second, that even assuming the statute was tolled on January 20, 1969, it began to run again when the Macomb County Sheriff returned the summons and complaint to the plaintiffs and filed a return of non-service.

At the time suit was commenced, the plaintiffs believed that the defendants were Macomb County residents. In fact, the defendants had been residents of Macomb County at the time of the accident but had moved before the suit was filed. On January 16, 1969, five days before the running of the statute of limitations, the plaintiffs filed a copy of the summons and complaint with the Macomb County Sheriff.

These facts establish sufficient compliance with the “good faith” requirements of the statute. The fact that the service was placed in the hands of the wrong officer is not determinative. Bratton v. Trojan Boat Company (1969), 19 Mich App 236.

The defendants’ claim that, when service was returned by the Macomb County Sheriff, the statute began to run again is without merit.

This argument is at variance with the statute, unsupported by its language, and inconsistent with its purpose. In the committee notes following the statute, MCLA § 600.5856, supra, the following appears:

“In summary, a method has been provided whereby a plaintiff, by taking the proper steps, can toll the statute of limitation on his cause of action for a maximum period of 90 days. The establishment of a maximum toll period should eliminate the litigation-provoking questions as to whether or not a plaintiff ‘intended’ to ‘diligently prosecute’ his suit, as bearing on the issue of how long the statute could be tolled by placing a copy of the summons and complaint in good faith in the hands of an officer for service.” (Emphasis supplied.)

The plaintiffs filed suit on January 16, 1969, prior to the running of the statute of limitations. A copy of the summons and complaint were in “good faith” placed in an officer’s hands and the statute of limitations was tolled for 90 days. Within that 90-day period, on February 13, 1969, the plaintiffs obtained service on the defendants in Wayne County. Thus, the plaintiffs’ action was commenced prior to the running of the statute of limitations and the lower court did not err in denying the defendants’ motion for accelerated judgment.

Affirmed. Costs to appellees.

MCLA § 600.5805 (Stat Ann 1962 Rev § 27A.5805) provides for a three-year statute of limitations.