Brown v. Porter

13 Mich. App. 6 (1968) 163 N.W.2d 709

BROWN
v.
PORTER.

Docket Nos. 2,884, 2,885.

Michigan Court of Appeals.

Decided August 27, 1968. Leave to appeal denied November 22, 1968.

Austin A. Howard, for plaintiffs.

Nunneley, Nunneley & Hirt, for defendant.

Leave to appeal denied by Supreme Court November 22, 1968.

T.G. KAVANAGH, J.

The parties in this case were involved in an automobile accident on December 25, 1962. On December 27, 1965^[1] plaintiffs filed a complaint and served summons whereupon defendant made a motion for and was granted an accelerated judgment (GCR 1963, 116) on the grounds that plaintiffs' personal injury action was barred by the three-year statute of limitation, CL 1948, § 600.5805 (Stat Ann 1962 Rev § 27A.5805).

Plaintiffs' position below and on appeal is that, as the last day to bring action was a legal holiday followed by a Sunday, GCR 1963, 108.6 preserved this action until Monday, December 27, 1965. The pertinent court rule states:

"In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday or legal holiday."

Defendant asserts that the rule is one governing procedure and practice in the courts and cannot work to extend a statute of limitation as set out by the legislature.

Since the adoption of GCR 1963, 108.6, prescribing computation of time, no case has been before the Court questioning the applicability of this rule to the provisions of general statutes of limitation. The case of Murphy v. City of Detroit (1966), 2 Mich. App. 473, involved a similar problem but no request was made there for an interpretation or application of this court rule and the issues presented were capable of resolution on different grounds.

The rule before us provides the method of the computation of time allowed not only by rules or by order of the court, but by "any applicable statute." It would appear that the intent of the Supreme Court in adopting these provisions was to stand in accord with the general rule allowing extension^[2] in the absence of a computation of time statute and to concur in the reasoning of those Federal decisions construing an identical Federal rule of procedure.^[3]

Since the rule had acceptance by the legislature and since no contrary policy is expressed in any other statute, it would seem that the liberality expressed therein can also be applied to the present statute of limitation. To provide such a construction is neither a contravention nor extension of the statutory provisions but is merely a judicial interpretation of "how" an action is to be brought after the legislature has specified "what" actions may be brought.^[4] Determining procedures and practice, (i.e. the "how"), is clearly within the powers granted the judiciary in this State's Const 1963, art 6, § 5 and reiterated by the Court in GCR 1963, 16. This interpretation permits the court clerk's office to be closed on Saturdays, Sundays, and legal holidays without shortening the time established by the legislature within which suit may be commenced. So viewed, the rule is well within the power of the Supreme Court to promulgate in exercise of its right to establish the hours court shall be open.

We hold, therefore, that GCR 1963, 108.6 applies to general statutes of limitation, thereby preserving plaintiff's action until December 27, 1965.

Reversed and remanded.

QUINN, P.J. and LEVIN, J., concurred.

NOTES

[1] December 25, 1965, was Saturday, December 26, 1965, Sunday; December 27, 1965, Monday, was the first business day for the courts after the 3rd anniversary of the collision.

[2] Where the last day on which to do an act falls on a Sunday or legal holiday the general rule is to extend the time to the next business day of the court. See 86 CJS, Time § 14(9) p 894. Also see 20 ALR2d 1249 Annotation: Inclusion or exclusion of first and last day for purposes of statute of limitations, p 1258.

[3] Rule 6(a) of the Federal Rules of Civil Procedure, 28 USCA, is identical to GCR 1963, 108.6. There are a variety of opinions in Federal courts on this issue. The fact that a particular statute in question was one regulating procedure seemed at first to have lessened the court's hesitation in applying rule 6(a) to statutory limitations. E.g., Union National Bank v. Lamb (1949), 337 U.S. 38 (69 S. Ct. 911, 93 L. Ed. 1190), where the time for taking an appeal was set out by statute; Simon v. Commissioner of Internal Revenue (CA 2, 1949), 176 F2d 230, where statute regulated appeals from tax courts; Sherwood Bros., Inc., v. District of Columbia (1940), 72 App DC 155 (113 F2d 162), where statute regulated claim for tax refund; Johnson v. Flemming (CA 10, 1959), 264 F2d 322; Wirtz v. Local Union 169, International Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO, (Nev, 1965), 246 F Supp 741; Wirtz v. Local Union 611, International Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO, (Conn, 1964), 229 F Supp 230, where statutes regulated activities and appeals from administrative bodies.

The liberal view has gained acceptance in recent years so that now the Federal courts are applying rule 6(a) to statutes of limitations relating to rights. See Prince v. United States (ED Wis. 1960), 185 F Supp 269; Rutledge v. Sinclair Refining Co. (SD NY, 1953), 13 FRD 477. See also, Boulet v. Millers Mutual Insurance Association of Illinois (Minn, 1964), 36 FRD 99.

Any split which may have once existed throughout the Federal circuits is definitely narrowing toward the liberal view.

[4] Joiner and Miller, Rules of Practice and Procedure, A Study of Judicial Rule Making, 55 Mich. L Rev 623 (1957).