Bandfield v. Wood , 104 Mich. App. 279 ( 1981 )

104 Mich. App. 279 (1981) 304 N.W.2d 551

BANDFIELD
v.
WOOD

Docket No. 49680.

Michigan Court of Appeals.

Decided March 4, 1981.

Charfoos, Christensen, Gilbert & Archer, P.C. (by John G. Konkel), for plaintiff.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Mark I. Leach, Assistant Attorney General, for defendant.

Before: BEASLEY, P.J., and R.B. BURNS and C.J. HOEHN,^[*] JJ.

R.B. BURNS, J.

Plaintiff instituted suit to recover damages for personal injuries suffered as a result of the negligent acts of defendants while he was an inmate of Camp Cusino.

Defendant, Donald Wood, is the only defendant who is a party to this appeal and is the camp supervisor at Camp Cusino.

Originally plaintiff filed suit in the Court of Claims and alleged that defendants negligently failed to properly supervise the employees and personnel who had the care and custody of the area where the medicines were kept, breached their duty to keep the first-aid area locked, breached their duty to see that the medicines were not tampered with and committed other unnamed acts of negligence.

Defendant, through the attorney general, filed a motion to dismiss the suit on the ground that the plaintiff was suing the defendants in their individual capacities and, therefore, the Court of Claims did not have jurisdiction. The Court of Claims granted the motion and dismissed the case.

After the original case was dismissed, plaintiff instituted the present case in the circuit court and alleged the same facts contained in the original suit in the Court of Claims.

Defendant then moved for an accelerated judgment, claiming that the circuit court lacked jurisdiction and that the Court of Claims had exclusive jurisdiction over the cause of action because defendants were being sued in their capacities as state officials for acts committed in the exercise of their official duties.

The circuit judge denied the motion for accelerated judgment on the grounds that plaintiff's present cause of action was against Wood in his individual capacity and also that Wood was estopped from claiming that the Court of Claims had exclusive jurisdiction.

Jurisdiction of the subject matter cannot be given by consent, and the question of jurisdiction may be reached at any time. Warner v Noble, 286 Mich. 654; 282 N.W. 855 (1938).

Jurisdiction of the subject matter of a judicial proceeding is an absolute requirement. It cannot be conferred by consent, by conduct or by waiver. Kita v Matuszak, 21 Mich. App. 421; 175 NW2d 551 (1970). It follows that subject-matter jurisdiction cannot be acquired by estoppel.

MCL 600.6419; MSA 27A.6419 grants the Michigan Court of Claims exclusive jurisdiction of actions for damages against the State of Michigan and state officials.

In People v Freedland, 308 Mich. 449, 457-458; 14 NW2d 62 (1944), the Court said:

"`After an exhaustive examination of the authorities we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional.'"

In our opinion defendant Wood is not a "state official" for purposes of suit in the Court of Claims.

Affirmed. No costs.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.