Parker Bros. Co. v. Railroad Co. , 242 Mich. 214 ( 1928 )

This suit was started by summons November 25, 1918. The writ was returned "not found" on January 31, 1919. It is agreed that it was not possible to get service on the defendant company in Michigan on the date suit was started nor at any time thereafter until January 6, 1921. The plaintiff caused analias summons to be issued October 27, 1921, and service thereof was made on the defendant October 29, 1921. This alias was issued without a showing that in the exercise of reasonable diligence service could not have been obtained at an earlier date, as required by Circuit Court Rule No. 18, § 2. For this reason the service of this alias is conceded by the respective parties to have been irregular and ineffective. On December 2, 1921, the plaintiff's, attorney made an application to the circuit judge to have the issuance of another alias authorized. This application was supported by an affidavit showing it was not possible to obtain service on the defendant before January, 1921, and that the plaintiff's attorney did not know such service could be obtained until October, 1921, notwithstanding he made inquiries relative thereto at various times; and, further, that unless an alias was issued plaintiff's right of action would be barred. On this showing the court ordered the issuance of an alias summons which was served December 5, 1921. The defendant entered a special appearance and moved to quash this alias writ. The motion was granted, and the plaintiff has appealed.

This suit is based upon a bill of lading and by its terms the period within which suit might be brought thereon expired March 21, 1919. In disposing of the motion to quash, the trial court held that the length of time which elapsed between the date of issuing the original summons (November 25, 1918) and the date of issuing the alias (December 3, 1921) was so great that, notwithstanding the showing made incident to the application for the alias, the continuity of the action was broken; and since the cause of action became barred in the interim, the issuance of the alias writ would not revive the suit. We are in accord with this holding. While the precise question has not been passed upon before by this court, the rule was rather definitely indicated in Gunn v. Gunn, 205 Mich. 198, wherein Justice FELLOWS held that an alias issued without proper basis was not void but should be "treated as a new writ;" but he there specially stated: "In the instant case the statute of limitations is not involved." When the Gunn Case was decided, Circuit Court Rule No. 18, § 2, provided, as it still provides, that any time after the filing of the return of an unserved writ an alias or pluries writ may be issued "by leave of the court upon proper showing by affidavit satisfying the court that service could not, with reasonable diligence, have been made sooner." But we are of the opinion that the provision in this rule for issuing an alias or pluries writ "atany time thereafter" was not designed to abolish or circumvent the limitations otherwise applicable to an action; and that in cases such as this wherein there is a clear break in the continuity of the action during which the statute of limitations becomes effective or the suit is otherwise barred, the right of action is terminated. The circumstances surrounding these parties did not deprive the plaintiff of an opportunity to have his rights adjudicated; but he was required to submit his case to a court having jurisdiction of the defendant. This he did not choose to do; but instead allowed his right of action to become barred by the terms of the contract he had made with the defendant.

The judgment entered in the circuit court is affirmed, with costs of this court to the appellee.

FELLOWS, WIEST, CLARK, McDONALD, and SHARPE, JJ., concurred.

The late Chief Justice FLANNIGAN did not sit.

The late Justice BIRD took no part in this decision.