Buscaino v. Rhodes ( 1970 )

J. H. Gillis, P. J.

The cause of action in this case arose out of an automobile accident on November 13,1964. The suit was commenced on November 7, 1967, six days before the expiration of the statute of limitations,¹ and on that date a copy of the summons and complaint were placed in the hands of the sheriff (for service). At that time counsel for plaintiffs advised the sheriff that one of the defendants was temporarily outside the jurisdiction and requested service not to he made on either defendant until the absent one returned.

RJA § 5856² 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.)

Service was made on January 2, 1968, within the 90-day period commencing with the date the summons and complaint were given to the sheriff. On January 22, 1968, defendants’ attorney moved for accelerated judgment pursuant to GrCR 1963, 116.1 (5) on the ground that the statute of limitation had not been tolled but had expired because the summons and complaint had not been given to the sheriff for immediate service. The trial court granted the motion in an order dated March 26,1968. On April 12, 1968, plaintiffs moved to set aside the order and from a denial of that motion they appeal.

The question is whether a copy of the summons and complaint were placed in the hands of the sheriff for immediate service. The 90-day tolling period of § 3 is not to be construed as a gratuitous extension of time in which a party, provided he places a copy of the summons and complaint in the hands of an officer, may further exercise his discretion as to when service will be made. The import of the statute is to facilitate notice to a defendant and to stop the running of the statute of limitation for 90 days to allow defendant to be served by the officer. See committee comment to RJA § 5856. Thus, a plaintiff upon whose claim a statute of limitations is running-will not he penalized for the time it takes an officer to serve a defendant, up to 90 days.

In this case plaintiffs’ attorney instructed the sheriff to withhold service until further notice because, as stated by affidavit, he “wanted-both defendants served at the same time in order to prevent said defendant from avoiding service.” One defendant was capable of being served and alternative means were available to serve the defendant who was outside the jurisdiction. A copy of the summons and complaint were not placed in the hands of an officer for immediate service and the statute of limitation was not tolled.

Any act or declaration that is to postpone the effect of a statute of limitation is to be clearly scrutinized. Glass v. Drieborg (1941), 296 Mich 30. We deem a strict construction of the term “for immediate service” to be consistent with other cases in which § 5856 has been applied or construed. See Sera v. Eberlein (1968), 11 Mich App 139; DiGiovanni v. Yacenick (1968), 9 Mich App 590; Constantini v. Hofer (1967), 5 Mich App 597; Meyers v. Geer (1966), 4 Mich App 392; Bush v. Watson (1966), 3 Mich App 94; State Accident Fund v. Catsman Company, Incorporated (1965), 376 Mich 194.

I have carefully considered Hoseney v. Zantop (1969), 17 Mich App 141 (leave to appeal denied June 23, 1969, 382 Mich 765), a case which reaches a contrary result. We are not, however, bound, by that case, see Hackett v. Ferndale City Clerk (1965), 1 Mich App 6. Nor is the fact that leave to appeal was denied of any relevance. Such denials are acts of judicial discretion and do not constitute affirmances on the merits. People v. Berry (1968), 10 Mich App 469. As I am unpersuaded by its reasoning, I decline to follow Hoseney.

Affirmed. Costs to appellees.

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

2 CLS 1961, § 600.5856 (Stat Ann 1962 Rev § 27 A.5856).