STARR, Chief Judge.
The plaintiff, a citizen of Michigan residing in Kent county, began this action in the circuit court of Kent county on November 26, 1958, against the defendant, a New Jersey corporation authorized to do business in Michigan, to recover damages resulting from personal injuries. This action was commenced by the issuance of summons dated November 26, 1958, which was served on the defendant's legally-designated resident agent in the city of Detroit, Wayne county, Michigan, on November 28th. The plaintiff filed his declaration in the circuit court on December 15, 1958, and a copy thereof was served on the defendant.
In his declaration the plaintiff alleged that his employer, the American News Company, Inc., had leased an electric wire-tying machine from the defendant through its Gerrard Steel Strapping division, to be used for the bailing of magazines and other news material, and had purchased bailing wire from the defendant to be used in the machine. Plaintiff alleged that at all times the title to the leased wire-tying machine remained in the defendant. He further alleged that "on or about" December 7, 1955, while using the wire-tying machine in the bailing of magazines, the wire on a bundle being bailed broke and flew up in his face, causing severe facial and eye injuries. He further alleged that the defendant was careless and negligent in the manufacture and inspection of its wire-tying machine and in the manufacture of bailing wire for use in the machine; that defendant warranted that the machine was reasonably fit for the use and purpose for which it was intended; and that defendant's carelessness, negligence, and breach of warranty were the direct and proximate cause of his injuries and resulting damages.
On January 2, 1959, the defendant removed the action from the circuit court of Kent county to this court on the basis of diversity of citizenship, 28 U.S.C. § 1441(a), and on January 6th filed motions to quash service of summons, to strike the declaration, and to dismiss the action. It based its motion to quash service of summons on the ground that this is a personal transitory action at law commenced in Kent county where the plaintiff resides against the defendant Steel Corporation, which resides outside the county, and that as the summons was served outside the county where the suit was commenced, contrary to the provisions of Comp.Laws Mich.1948, § 613.27, subd. 4, the service was void and ineffective and the circuit court of Kent county did not acquire personal jurisdiction over the defendant in the first instance, and therefore that this Federal court did not acquire jurisdiction upon removal. The defendant based its motions to strike the declaration and to dismiss the action on the ground that as the plaintiff's declaration was filed December 15, 1958, which was more than three years after the alleged cause of action arose on December 7, 1955, the plaintiff's cause of action was barred by the State statute of limitations, Comp.Laws Mich.1948, § 609.13, subd. 2,
See also Freeman v. Bee Machine Co., Inc., 319 U.S. 448, 63 S.Ct. 1146, 87 L. Ed. 1509; WSAZ, Inc., v. Lyons, 6 Cir., 254 F.2d 242, 244; Garden Homes, Inc., v. Mason, 1 Cir., 238 F.2d 651, 653; Petroleum Carrier Corporation v. Carter, 5 Cir., 233 F.2d 402, 404; Block v. Block, 7 Cir., 196 F.2d 930, 933.
The summons or process issued in the action in the circuit court of Kent county on November 26, 1958, was served upon the Corporation Company, the legally-designated resident agent of the defendant, in Wayne county, Michigan, on November 28th. Comp.Laws Mich.1948, § 613.29, provides in part:
Comp.Laws Mich.1948, § 613.27 as amended by Act No. 13, Pub.Acts 1955, relating to service of process, provides (it should be noted that only subd. 3 was amended):
Comp.Laws Mich.1948, § 610.1 as amended by Act No. 13, Pub.Acts 1955, relating to venue provides as follows:
The plaintiff contends that as this action was begun in Kent county, in which the cause of action arose, the service of process on the defendant in Wayne county was valid legal service under subd. 3 as amended of § 613.27 and gave the circuit court jurisdiction of the defendant, and therefore that this court had jurisdiction on removal. On the other hand, the defendant contends that this is a personal transitory action at law commenced in Kent county, where the plaintiff resides, against the defendant, residing without the county, and that under subd. 4 of § 613.27 service of process "must be had in the county where the suit is commenced," and therefore that the service of process upon the defendant in Wayne county was void and did not give the circuit court jurisdiction.
It should be noted that subd. 3 of § 613.27 relating to service of process, and subd. 2 of § 610.1 relating to venue, were both amended by Act No. 13, Pub.Acts 1955. It should further be noted that the amendatory act did not amend subd. 4 of § 613.27. Furthermore, it appears that subd. 3 of § 613.27 providing for the service of process anywhere within the State, and subd. 2 of § 610.1 providing for venue in the county where a cause of action arose, were both amended in pursuance of the recommendations of the committee on civil procedure of the State Bar of Michigan. In the report of the committee, 31 Michigan State Bar Journal, Sept. 1952, p. 23, it is stated:
In a subsequent report of the committee on civil procedure, 32 Michigan State Bar Journal, Sept. 1953, p. 28, it is stated:
It is significant that the legislature by Act No. 13, Pub.Acts 1955, amended both subd. 3 of § 613.27 relating to service of process, and subd. 2 of § 610.1 relating to venue, in the same form and wording as were recommended by the committee on civil procedure of the State Bar in 1954. See 33 Michigan State Bar Journal, Sept. 1954, p. 32. It is clear that subd. 3 of § 613.27 was amended to provide that when suit is brought in the county where the cause of action arose, service of process may be made anywhere in the State, in order to make the service-of-process statute consistent with the amendment of the venue statute, subd. 2 of § 610.1, which provides that tort actions may be commenced and tried in any county where the cause of action arose.
Under subd. 3 of § 613.27 as amended, when a tort action is begun in the county where the cause of action arose, process may be served anywhere in the State. Under subd. 4 of that section (which was not amended), when suit is begun in the county where the plaintiff resides against a defendant residing without the county, service must be had in the county where the suit is commenced. As subds. 3 and 4 of § 613.27 relating to service of process are incompatible and in conflict, the court must determine
In re Loakes' Estate, 320 Mich. 674, 679, 32 N.W.2d 10, 12, the court said:
In Detroit Club v. State of Michigan, 309 Mich. 721, 732, 16 N.W.2d 136, it is stated:
In Lawrence Baking Co. v. Unemployment Compensation Commission, 308 Mich. 198, 208, 13 N.W.2d 260, 263, 154 A.L.R. 660, the Supreme Court of Michigan said:
In 82 C.J.S. Statutes § 384, p. 897, it is stated:
See also Freiborg v. Chrysler Corporation, 350 Mich. 104, 106, 85 N.W.2d 145; Detroit Edison Company v. Janosz, 350 Mich. 606, 613, 87 N.W.2d 126; Detroit Edison Company v. Department of Revenue, 320 Mich. 506, 518, 31 N.W.2d 809; People v. Johnson, 270 Mich. 622, 623, 624, 259 N.W. 343.
The foregoing authorities establish the rule in Michigan that where an amendment of a statutory provision is in conflict with the provisions of a statute not amended, the provisions of the amendment are given preeminence and will control. It seems clear that by the passage of Act No. 13, Pub.Acts 1955, which amended both the venue statute, § 610.1, subd. 2, and the service-of-process statute, § 613.27, subd. 3, the legislature
Furthermore, entirely aside from the conflict between subds. 3 and 4 of § 613.27 hereinbefore discussed, it could be argued with considerable force that the service of the summons upon defendant's resident agent in Wayne county was valid legal service under Comp.Laws Mich. 1948, § 613.31, which expressly provides that "in all cases where suit is brought against a foreign corporation, process may be served upon any officer or agent of such corporation within this state * * *. If such corporation has a legally designated agent or attorney in this state, appointed in pursuance of statute for that purpose, service of process may also be made upon such agent or attorney." See Fraser v. Collier Construction Co., 297 Mich. 641, 649, 298 N.W. 313.
For the reasons hereinbefore stated the court concludes: (1) That subd. 3 as amended of § 613.27 supersedes subd. 4 of that section, which was not amended, and is controlling as to the legality of the service of process in the present action; (2) that as the plaintiff's suit was begun in the circuit court of Kent county, in which his cause of action arose and which was the proper county of venue, service of process could under subd. 3 as amended be made upon the defendant in Wayne county; and (3) that service of process upon the defendant's legally-designated resident agent in Wayne county gave the circuit court of Kent county personal jurisdiction of the defendant and therefore this court had jurisdiction on removal.
The court will next consider the defendant's motion to strike the plaintiff's declaration on the ground that it was filed December 15, 1958, after the plaintiff's alleged cause of action was barred on December 7th under Comp. Laws Mich.1948, § 609.13, subd. 2, supra, and that the filing of the declaration on December 15th was in effect an attempt to assert a new cause of action after the statute of limitations had run. Comp. Laws Mich.1948, § 613.4, provides as follows:
The present action was commenced by original writ or summons issued and placed in the hands of a process server on November 26, 1958, and served on the defendant's resident agent November 28th. The law is well established in Michigan that an action is commenced when a writ or summons is issued and placed in the hands of an officer for service. In Nathan v. Rupcic, 303 Mich. 201, 204, 6 N.W.2d 484, 485, the Supreme Court said:
In Harvey v. Detroit Fire & Marine Insurance Co., 120 Mich. 601, 605, 606, 79 N.W. 898, 899, the Supreme Court said:
See also Aetna Casualty and Surety Company v. Patterson, D.C., 163 F.Supp. 783; Korby v. Sosnowski, 339 Mich. 705, 710, 64 N.W.2d 683; Home Savings Bank v. Young, 295 Mich. 725, 730, 295 N.W. 474; People's Mortgage Corporation v. Wilton, 234 Mich. 252, 255, 208 N.W. 60; Taylor v. Mathews, 224 Mich. 133, 136, 194 N.W. 533.
Therefore, the court concludes that the present action was commenced when summons was issued and placed in the hands of the process server on November 26, 1958.
The plaintiff began this suit by the issuance of an original writ on November 26, 1958, but failed to file his declaration within 15 days thereafter as required by § 613.4, subd. 2, hereinbefore quoted. The defendant contends that the filing of the declaration on December 15th, which was after the 3-year statute of limitations would have barred plaintiff's action on December 7th, was in effect an attempt to assert a new cause of action, and that the declaration should be stricken and the action dismissed. However, this court is convinced that the requirement for the filing of the declaration within 15 days after the commencement of the suit is not mandatory and that, while the plaintiff might have been subject to default for failure to file within that period, the default was cured by the subsequent filing. In Smak v. Gwozdik, 293 Mich. 185, 188, 291 N.W. 270, 271, the court said:
See also Sczesny v. Wayne Circuit Judge, 245 Mich. 438, 440, 222 N.W. 759; Goodspeed v. Smith, 161 Mich. 688, 689, 690, 126 N.W. 975.
In summary, this action was commenced by original writ issued November 26, 1958, and the writ was served November 28th before the statute of limitations had run. The declaration as the initial pleading in the action was filed December 15th, and as plaintiff's default for failure to file his declaration within the 15-day period was not entered, the court holds that his default was cured by the subsequent filing on December 15th. Therefore, the filing of the declaration on December 15th, after the statute of limitations had run, was not the assertion of a new cause of action as contended by the defendant.
For the reasons hereinbefore stated the court concludes that the defendant's motions to quash service of process, to strike the plaintiff's declaration, and to dismiss the action should be denied. An order denying the defendant's motions will accordingly be entered. No costs will be allowed.
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