Summary
In Salmanovitz v. Dexter-Davison Markets, Inc. (1969), 17 Mich. App. 390, this Court held that a bailiff is empowered to serve processes received from a circuit court commissioner and in this capacity he may be considered an officer for the purpose of tolling the statute of limitations for 90 days.
Summary of this case from Dolland v. Academy Asphalt Paving Co.Opinion
Docket No. 4,762.
Decided May 27, 1969.
Appeal from Wayne, John B. Swainson, J. Submitted Division 1 May 6, 1969, at Detroit (Docket No. 4,762.) Decided May 27, 1969.
Complaint by Sarah Salmanovitz against Dexter-Davison Markets, Inc., a Michigan corporation, for injuries sustained on defendant's premises. Defendant moves to quash service and for summary judgment. Motions denied. Defendant appeals. Reversed.
Sallen, Gutter Sallen, for plaintiff. Gussin, Weinstein Kroll ( Arnold M. Gordon, of counsel), for defendant.
BEFORE: HOLBROOK, P.J., and McGREGOR and BRONSON, JJ.
On April 7, 1963, plaintiff sustained an injury while on defendant's premises. A negligence action was commenced on April 4, 1966, three days before the statute of limitations had run. The summons and complaint were turned over to Robert Easton, bailiff for the Wayne county circuit court commissioners. In personam service was made and defendant notified in Oakland county on July 2, 1966. Upon actual receipt of service, defendant filed a motion to quash service and for summary judgment, stating that the statute of limitations had run. From a denial of this motion defendant appeals.
A careful analysis of CLS 1961, § 600.1074 (Stat Ann 1962 Rev § 27A.1074) indicates that a commissioner's bailiff has a very limited scope of authority. MCLA § 600.1074 states in part that:
"The bailiff shall possess only the powers necessary in the service and execution of process issued by the circuit court commissioners of the county." (Emphasis added.)
Reasonable interpretation of the above-quoted statute leads to the conclusion that unless process issues from, and is given to the bailiff, by the circuit court commissioner of the county, his power as an officer of the court to serve process is curtailed. Any service of process unconnected with the commissioner is beyond the bailiff's official statutory power. When he accepts papers to be served from another person or entity not connected with the commissioner, the bailiff acts as an ordinary citizen or layman. As such, he is able to serve process on his own, but he cannot be considered an officer of the court for immediate service which would toll the statute of limitations for 90 days under CLS 1961, § 600.5856 (Stat Ann 1962 Rev § 27A.5856[3]).
Further, even ignoring the above reasoning, Easton as a Wayne county bailiff could not have properly served the papers in Oakland county so as to toll the statute. See Whitehead v. Van Buren Circuit Judge (1922), 220 Mich. 504; Higgens v. Hampshire Products, Inc. (1948), 319 Mich. 674, 676, SHARPE, J. (dissenting in part).
Judgment reversed.