Michigan Mutual Liability Co. v. Leo Adler, Inc.

Quinn, P. J. Defendant moved to dismiss plaintiff’s action in common pleas court of Detroit for the reason the plaintiff’s claim was barred by the statute of limitations.1 Prom denial of that motion and denials of a motion for rehearing and a motion for reconsideration of the motion for rehearing, in May 1966, defendant sought leave to appeal to circuit court. It appeals to this Court from denial of [294] leave to appeal to the circuit court. The issue presented is the application of the statute of limitations to plaintiff’s claim. March 5, 1961, plaintiff’s subrogor left its automobile with defendant for repair. The automobile was stolen from defendant and returned to plaintiff’s subrogor March 6, 1961, in a damaged condition. Pursuant to a policy of insurance issued by plaintiff to its subrogor, the former caused the automobile to be repaired, took a subrogation receipt May 2, 1961, and filed this action March 5, 1964. Service of complaint and summons on defendant was not had until October 19, 1965, the summons being the sixth alias summons issued.2 The trial court held that PA 1961, No 236, § 103 (CLS 1961, § 600.103, Stat Ann 1962 Rev § 27A.103) precluded application of the 90-day limitation of the tolling provisions of the statute of limitations found in PA 1961, No 236, § 5856(3) (CLS 1961, § 600.5856 [3], Stat Ann 1962 Rev § 27A.5856[3]), to common pleas court and that the statute of limitations had not run. PA 1961, No 236, § 103, supra, reads as follows: “Nothing in this act shall be construed to alter or amend the provisions of Act No 260 of the Public Acts of 1929, as amended, being sections 728.1 to 728.30 of the Compiled Laws of 1948.” Act No 260, therein referred to, is the common pleas court act, and it should be obvious that before any provision of the revised judicature act can be construed to alter or amend the provisions of Act No 260, the provision allegedly so altered or amended must be found in Act No 260. It is barren of any provision for limitation of actions, and therefore [295] PA 1961, No 236, supra, does not preclude the application of the 90-day tolling limitation found in PA 1961, No 236, § 5856, supra, to actions in common pleas court. In addition, on the facts before us, no tolling question is presented. DiGiovanni v. Yacenick (1968), 9 Mich App 590. The remaining question is whether the 3-year (PA 1961, No 236, § 5805, supra) or the 6-year (PA 1961, No 236, § 5807) statute of limitation applies. In interpreting Baatz v. Smith (1960), 361 Mich 68, this Court in State Mutual Cyclone Insurance Company v. O & A Electric Cooperative (1966), 5 Mich App 452, 459 stated the correct rule that absent an express contract, in actions to recover damages for injuries to person or property the 3-year statute applies whether the claim arises out of tort or implied contract. There is no express contract involved in the present action. Reversed, with costs in all courts to defendant. Remanded to common pleas court for entry of an order granting defendant’s motion to dismiss. J. H. (xillis and Holbrook, JJ., concurred. Footnotes [1] PA 1961, No 236, § 5805, CLS 1961, § 600.5805 (Stat Ann 1962 Rev § 27A.5805). [2] CLS 1961, § 728.13 (Stat Ann 1962 Bev § 27.3663) amt Bule 7, § 4, Bules of the Common Pleas Court of Detroit.