State Accident Fund v. Catsman Co.

376 Mich. 194 (1965)

136 N.W.2d 21

STATE ACCIDENT FUND v. CATSMAN COMPANY, INCORPORATED.

Calendar No. 3, Docket No. 50,571.

Supreme Court of Michigan.

Decided July 13, 1965.

*195 Stewart M. Green and Peter Monroe, for plaintiff.

Foster, Campbell, Lindemer & McGurrin (John L. Collins, of counsel), for defendant.

SMITH, J.

The question is, as defendant says, whether "circumstances surrounding the presentment of a copy of the summons and complaint" to the sheriff's office by plaintiff's counsel, "as disclosed by the affidavits," were sufficient to toll the 3-year statute of limitations.[1]

The cause of action arose out of an accident occurring June 6, 1960, in Midland county. On June 6, 1963, plaintiff's counsel filed a complaint in the Midland circuit and summons was issued. Defendant's address was alleged to be in Midland. On the same date of filing, plaintiff's counsel took a copy of the complaint and summons to the sheriff's department in Midland. What happened there is essentially what the case is all about.

The question is whether the statute was complied with. CLS 1961, § 600.5856 (Stat Ann 1962 Rev § 27A.5856), provides as follows:

"The statutes of limitations are tolled 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.)

Defendant's motion for accelerated judgment,[2] which was denied by the trial court, was supported *196 by 3 affidavits: one, from a process server in another county, Genesee, who received summons and complaint on June 26, 1963, and made service upon defendant June 27th, approximately 3 weeks after the statute had run, unless, of course, the statute was tolled. Other affidavits by the undersheriff of Midland county and defendant's counsel present matters for interpretation.

The undersheriff deposed that in the early part of June 1963, he had spoken to an individual "who wanted the summons and complaint to be served." There is no doubt that this was one of plaintiff's attorneys. Further, the undersheriff deposed as follows:

"3. I had personal knowledge that Mr. Catsman [defendant's president] resided in Flint, Michigan, and I advised this individual [plaintiff's counsel] to take his papers to the Genesee county sheriff's department for service of process.

"4. These papers were not placed in my hands, for service of process, nor did I accept them for service of process and this individual departed without turning them over to me or the Midland county sheriff's department for service." (Emphasis supplied.)

In opposition to defendant's motion for accelerated judgment, plaintiff countered with affidavit of counsel which is quoted in part as follows:

"That on June 6, 1963, Alan J. Long, affiant herein, did file the plaintiff's complaint with regard to the above-entitled cause with the county clerk, Midland county. Summons was then and there issued and the affiant, at the same time, delivered a copy of the complaint and summons to the sheriff of Midland county by handing said copy of complaint and summons to an officer at the desk in the sheriff's department. Said officer accepted the summons and copy of the complaint and after having examined same notified *197 the affiant that the defendant could not be found in Midland county and instructed the affiant to take the copy of the complaint and summons to the sheriff in Genesee county for service. Whereupon the affiant caused the copy of the complaint and summons to be given to the sheriff in Genesee county on June 26, 1963." (Emphasis supplied.)

Affiants' allegations, conclusionary in part (as to "placed", "accepted" and "delivered"), cannot obscure what happened. On the last day, when the clock was ticking away, plaintiff's counsel took complaint and summons to the sheriff's office. The undersheriff, upon viewing the papers, advised counsel that defendant was not in Midland but in Genesee county. Whereupon, plaintiff's counsel left and took the papers with him. There is no claim that the officer refused the papers. Although the respective affiants plead opposite conclusions, there is no dispute as to essential objective facts. Plaintiff's counsel obviously agreed with the officer's advice because he took the papers and left. At that point, having assumed responsibility for getting the papers to Genesee, it would seem that if counsel were intent upon in good faith placing the papers in the hands of an officer for immediate service, he could have done either one of two things: first, traveled the relatively short distance between Midland and Flint, 58 miles by expressway, or mailed the papers immediately to the Genesee county sheriff under appropriate instructions. He did neither, but waited for nearly three weeks before placing summons and complaint in the hands of the officer in Genesee county. When there is no claim or showing of arbitrary refusal of papers by an officer, it is difficult to see how a last minute's march up to the wrong sheriff's office, under the circumstances, can operate to toll the statute. We think that it cannot be said that summons *198 and complaint in good faith were placed in the hands of an officer for immediate service, within the meaning of the rule.

Reversed and remanded. Costs to defendant.

T.M. KAVANAGH, C.J., and DETHMERS, KELLY, BLACK, SOURIS, O'HARA, and ADAMS, JJ., concurred.

[1] CLS 1961, § 600.5805 (Stat Ann 1962 Rev § 27A.5805). REPORTER.

[2] See GCR 1963, 116. REPORTER.