McMahill v. MacLean

R. B. Burns, J. Plaintiffs appeal from the dismissal of their cause of action, pursuant to a motion for accelerated judgment, on the grounds that the statute of limitation had expired. Plaintiffs’ cause of action arose out of an accident which occurred August 11, 1964, in Saginaw county. The defendant was a resident of Windsor, Ontario, Canada. Complaint was filed in Saginaw county circuit court on August 11, 1967, the last day of the three-year statute of limitation. MCLA § 600.5805 (Stat Ann 1962 Rev § 27A.5805). On the same day plaintiffs mailed a copy of the summons and complaint to the secretary of state in Lansing, Michigan, in accordance with the Michigan nonresident motorist statute, MCLA § 257.403 (Stat Ann 1968. Rev § 9-.2103). Notice was sent by registered mail to the defendant on August 18, 1967. In their appeal from the dismissal in Saginaw county circuit court, plaintiffs contend that' the' statute of limitation was tolled when the complaint was filed, and a copy of the complaint and summons was sent to the secretary of state, and later notice was sent by registered mail to the defendant. W.e disagree. The methods of tolling the three-year statute of limitation are set forth in MCLA § 600.5856 (Stat Ann 1962 Rev § 27A.5856), which was enacted to precisely designate at what point the statutes of limitation are tolled. The plaintiff under MCLA § 600-.5856(2) (Stat Ann 1962 Rev § 27A.5856[2]) has the option of tolling the statute by means of complying with MCLA § 257.403 (Stat Ann 1968 Rev § 9.2103) which states in part: “(a) Service of summons in any action against a person, who at the time of such service is a nonresi *151 dent of this state, growing out of any accident or collision in which such person may have been involved while operating a motor vehicle upon a public highway of this state or in which a motor vehicle owned by him may have been involved while being operated with his consent, express or implied, on such public highway, may be made upon the secretary of state as the true and lawful attorney of such person with the same legal force as if served on him personally within this state. Service of such summons shall be made by leaving a copy thereof with the secretary of state, or his deputy, who shall keep a record of. each such process and the day and hour of service, and such service shall be sufficient service upon such nonresident, provided that notice of such service and a copy of the summons are forthwith either served upon the defendant personally by the sheriff or constable of the county in which he resides or sent by registered mail by the plaintiff or his attorney to the defendant. If personal service of such notice and copy of summons is had upon the defendant the officer making the service shall so certify in his return which shall be filed with the court having jurisdiction of said cause, or if service be made by registered mail then the plaintiff or his attorney shall make an affidavit showing that he has made service of the notice of summons upon the defendant by registered mail as herein provided and the affiant shall attach thereto a true copy of the summons and notice so served and the registry receipt of the defendant and shall file the affidavit and attached papers -with the court having jurisdiction of the cause. The court in which the action is pending may order such extension of time as may be necessary to afford the defendant reasonable opportunity to defend the action.” (Emphasis added.) Jurisdiction under this statute, however, is not established, so as to toll the running of the statute of limitation, until plaintiff has fully complied with the provisions. Notice was not sent to defendant forth *152 with, in accordance with the provisions, before the end of the three-year period following the accident. Therefore, the cause of action abated on August 11, 1967, when the statute was not tolled under MCLA § 257.403 (Stat Ann 1968 Rev § 9.2103) and MCLA § 600.5856(2) (Stat Ann 1962 Rev § 27A.5856[2]). Plaintiffs’ argument suggesting that the legislature intended to permit an extension in time following service of a copy of the complaint and of the summons upon the secretary of state lacks merit. The legislature did not intend to extend the statute of limitation to permit service of notice upon defendant beyond the limitation period; rather, it set forth a procedure by which a plaintiff can establish court jurisdiction over a nonresident motorist defendant. Accordingly, the provisions must be fully complied with within the statutory period. See Tomkiw v. Sauceda (1965), 374 Mich 381, and Meyers v. Geer (1966), 4 Mich App 392. Affirmed. Costs to defendant. All concurred.