Twomley v. Arnold , 372 Mich. 230 ( 1964 )

372 Mich. 230 (1964) 125 N.W.2d 860

TWOMLEY
v.
ARNOLD.

Calendar No. 112, Docket No. 50,254.

Supreme Court of Michigan.

Decided February 3, 1964.

Leitson, Dean, Dean & Abram (Max Dean, of counsel) for plaintiff.

Smith, Brooker & Harvey (Carl H. Smith, Sr., of counsel), for defendant.

DETHMERS, J.

Plaintiff, a resident of Shiawassee county, commenced this action against defendant doctor in Cheboygan county on October 19, 1962. Personal service was that day obtained on defendant in that county. Involved was malpractice, which allegedly occurred in October of 1960.

On November 2, 1962, defendant filed a motion to dismiss, supported by affidavits and deposition, on the ground that the court did not have jurisdiction of the person of defendant because he, also, was a resident of Shiawassee county. On December 10, 1962, plaintiff filed a motion to transfer the case to the Shiawassee county circuit court because, inter alia, the statute of limitations had then run on the cause of action.

It was competent, under the Michigan Court Rules then in effect, for the court to determine the jurisdictional question on motion, supported by affidavits. (Court Rule No 18, § 1[a] [1945].)

CLS 1956, § 610.1 (Stat Ann 1959 Cum Supp § 27.641), in effect when this suit was commenced, provided that actions founded upon wrongs shall be commenced in the county where 1 of the parties shall reside when suit is commenced, or in the county where the cause of action arose. Plaintiff's declaration alleged that he resided in Shiawassee county and that the malpractice occurred therein. The court found as a fact that defendant also was, and at the time of commencement of suit had been, a resident of Shiawassee county. This is fully supported by the undisputed proofs. Under the above cited statute and its predecessors, where neither party resided in the county where the action was commenced, and the cause of action did not arise there, the court lacked jurisdiction and a motion to dismiss on that ground should be granted. Moore v. Epstein, 258 Mich. 425.

On December 31, 1962, the court, for the reason above considered, signed an order dismissing the case, which was filed January 3, 1963. On January 7, 1963, plaintiff commenced suit against defendant on the same subject matter in Shiawassee county. On January 18, 1963, plaintiff filed his claim of appeal to this Court in this case in the Cheboygan court.

Plaintiff concedes that under the "old practice", if defendant was a resident of Shiawassee county, the case was properly dismissed by the Cheboygan circuit court for lack of jurisdiction. Plaintiff urges, however, that under the new rules (GCR 1963, 105.9 and RJA, PA 1961, No 236, § 701; [CLS 1961, § 600.701 (Stat Ann 1962 Rev § 27A.701)]) the residence aspects of this case would no longer present a jurisdictional question. See, also, RJA PA 1961, No 236, §§ 1601, 1645 (CLS 1961, §§ 600.1601, 600.1645 [Stat Ann 1962 Rev §§ 27A.1601, 27A.1645]), stating that provisions as to venue are not jurisdictional. Plaintiff next points out that GCR 1963, 14, makes the new rules effective January 1, 1963, and applicable to all proceedings after that date in actions then pending and urges that, therefore, they should govern on this appeal at this time. Plaintiff quotes from Chovan v. E.I. Du Pont De Nemours & Co. (ED Mich), 217 F Supp 808, 809, the following:

"Provisions of the Michigan revised judicature act relating to jurisdiction are not restricted to causes of action arising after January 1, 1963, its effective date."

Plaintiff's difficulty here is not that his cause of action arose before that date, but, rather, that his suit was commenced, was dismissed and properly disposed of, under the old rules and statutory provisions then in effect, prior to January 1, 1963.

RJA, PA 1961, No 236, § 102 (CLS 1961, § 600.102 [Stat Ann 1962 Rev § 27A.102]), does provide that the act is remedial in character and shall be liberally construed to effect the intents and purposes thereof. GCR 1963, 13, states that the new rules are to be construed to secure the just, speedy, and inexpensive determination of every action so as to avoid the consequences of any error or defect in the proceedings. In neither the statute or rules, however, is there an expression of the intent or purpose that they shall operate, on or after their effective date, to breathe the breath of life into a case which was dead prior thereto not only because of the December 31, 1962, order dismissing it but because it had been dead from the start for failure to be commenced in the proper county.

Defendant also says that plaintiff's institution of the suit in Shiawassee county on January 7, 1963, rendered the appeal here moot. In view of the above we need not determine this question.

Affirmed. Costs to defendant.

KAVANAGH, C.J., and KELLY, BLACK, SOURIS, SMITH, and O'HARA, JJ., concurred.

ADAMS, J., took no part in the decision of this case.