Yeager v. Mellus , 328 Mich. 243 ( 1950 )

328 Mich. 243 (1950) 43 N.W.2d 836

YEAGER
v.
MELLUS.

Docket No. 81, Calendar No. 44,744.

Supreme Court of Michigan.

Decided September 11, 1950.

Rothe, Marston, Edwards & Bohn, for plaintiff.

Chapman & Chapman, for defendant.

REID, J.

Plaintiff filed a declaration, with notice to plead indorsed thereon, to recover damages for libel, and 100 days later caused service of a copy of the declaration and notice to plead, to be made on defendant. Defendant made a motion to quash the service because of claimed discontinuity of the suit, and to dismiss the case as barred by the statute of limitations. From an order denying his motion, the defendant appeals.

Plaintiff claims that where a declaration with notice to plead is filed, there is no limitation established within which service must be made except the statute as to dismissal of suits for lack of progress.

PA 1905, No 76, provided:

"Actions brought for the recovery of any debt, or for damages only, may be commenced, either:

"1. By original writ; or,

"2. By filing in the office of one of the clerks of the court a declaration, to which is attached, or upon which is indorsed, a rule requiring the defendant to plead to such declaration within 15 days after the service of a copy thereof and notice of such rule, and serving a copy of such declaration, and notice of such rule personally on the defendant; which mode of commencing an action may be adopted against any person, whether privileged from arrest or not."

The above statute was repealed by the judicature act (No 314) of 1915 and the following substituted therefor:

"All actions at law in any court of record, except mandamus, quo warranto, and certiorari, may be commenced either,

"1. By original writ; or

"2. By filing in the office of one of the clerks of the court, a declaration upon which is indorsed a notice in substantially the following form:

"To _____________________________ defendant:

"You are hereby notified that a suit has been commenced against you as defendant by ______________________, as plaintiff, and that the within is a true copy of plaintiff's declaration in said cause, and that if you desire to defend the same, you are required to plead thereto within 15 days after service upon you of a copy of said declaration.

"Dated ___________________________

"________________________________ "Attorney for plaintiff.

"And either of said methods may be used in any case, notwithstanding the provisions of any general, local or special act, or city or village charter to the contrary. If such action shall be commenced by original writ, plaintiff shall file his declaration in the office of the clerk within 15 days after issuance of such writ." CL 1948, § 613.4 (Stat Ann § 27.734).

In 1919, this Court in Christe v. Springfield Fire & Marine Insurance Co., 207 Mich. 12, said at pages 14, 15, after quoting from both of the above acts,

"It will be noted that in this statute [the judicature act of 1915] there is no reference whatever to service. The framers of the new act undoubtedly had the old one before them and the omission of the provision for service of the declaration as a part of the necessary procedure in commencement of actions, it appears to us is significant. We are of opinion that it was the legislative intention to change the rule as to the commencement of suits by declaration and by the enactment of the above quoted section provide that said suits might be commenced simply by filing the declaration with the indorsed notice thereon."

While a statute preceding the statute of 1905 but in form the same or similar thereto, in the respects important for our present consideration, was in effect, this Court said in the case of City of Menominee v. Circuit Judge of Menominee County, 81 Mich. 577, at page 579:

"A declaration is a process. And it has been said by this Court that the filing and serving of the declaration is in the nature of process to bring the defendant into court."

The same may be said under the present statute as to declaration filed with notice to plead.

Court Rule No 13 (1945) provides in part:

"Original writs may be issued in vacation or in term time, and, except as otherwise provided by statute, may command service at any time, except Sunday, within 3 months from the date when issued; and original writs for the commencement of suit shall notify the defendant to appear in person or by attorney within 15 days after service of the writ upon him, except as provided in rule 27, to answer to the suit of the plaintiff according to the rules and practice of the court, with such additional command as shall be appropriate to the action of replevin and to actions commenced by attachment or capias ad respondendum, and the officer or person making such service shall file proof thereof immediately after service on all defendants has been obtained, or in case of no service then immediately after the last day fixed for service."

Plaintiff claims in effect that he may serve a copy of the declaration and notice to plead at any time, without there being any provision of either statute or court rule prescribing in what time service may be made. There is nothing in the statute or court rules expressly giving the plaintiff such latitude of conduct.

The words, original writ, as used in Court Rule No 13, can be considered as having a different meaning than the same words in the cited and quoted statutes. The words, original writ, as used in Court Rule No 13 must be construed to include a declaration with notice to plead attached or indorsed when used to take the place of an original writ. There is no other court rule prescribing the manner of service of a declaration with notice to plead, nor limiting the time for service.

When the plaintiff confers on the court jurisdiction of the subject matter of a suit, it can only be on condition that he proceed with due diligence to give notice to the defendant. This Court has heretofore required reasonable promptitude in serving original summons and alias summonses, for which proposition see Colling v. McGregor, 144 Mich. 651; Danaher v. Ross, 278 Mich. 485; Home Savings Bank v. Fuller, 299 Mich. 9.

It is not to be inferred that this Court in making the court rules either intentionally or inadvertently omitted all requirements of promptitude as to the plaintiff who files his declaration with notice to plead and of compliance with the time limit of 3 months, in Court Rule No 13.

Merely filing a declaration with notice to plead, is of course no notice at all. Waiting more than 3 months with nothing of record to excuse the delay is not due diligence.

The suit is for libel and barred after 1 year. CL 1948, § 609.13 (5) (Stat Ann 1949 Cum Supp § 27.605 [5]). The declaration sets forth October 21, 1948 and October 28, 1948, as the 2 dates of the publication of the alleged libel. Service of a copy of the declaration and rule to plead was not made until November 5, 1949.

The question as to the bar of the statute of limitations may be raised on a motion to dismiss. Danaher v. Ross, supra.

The service of a copy of the declaration and notice to plead was not made within 3 months of the filing of the declaration. The suit had been begun but there was a discontinuity of the suit at the end of 3 months without service. The motion to quash the service and dismiss the case with prejudice should have been granted. The suit is remanded to the trial court to make its order in compliance with this opinion. Costs to defendant.

BOYLES, C.J., and NORTH, DETHMERS, BUTZEL, CARR, BUSHNELL, and SHARPE, JJ., concurred.