The statute of limitations is not tolled in the absence of service of process or otherwise acquiring of jurisdiction. M.S.A. 27A. 5856, Comp. Laws Mich. 1948, § 600.5856 [P.A. 1961, No. 236]; State Acc. Fund v. Catsman Co., 376 Mich. 194, 136 N.W.2d 21 (1965). It is further contended by plaintiff that the allegation in the complaint that defendants fraudulently concealed their unlawful activities in order to escape detection, was sufficient to toll the statute of limitations.
And, thus, while the papers may be mailed to him, the statute is not tolled until they are actually received physically in his hands. However, in State Accident Fund v. Catsman Company, Incorporated (1965), 376 Mich. 194, the Supreme Court of Michigan declared, albeit in obiter dictum (p 197): "it would seem that if counsel were intent upon in good faith placing the papers in the hands of an officer for immediate service, he could have * * * mailed the papers immediately to the Genesee County sheriff under appropriate instructions."
We deem a strict construction of the term "for immediate service" to be consistent with other cases in which § 5856 has been applied or construed. See Sera v. Eberlein (1968), 11 Mich. App. 139; DiGiovanni v. Yacenick (1968), 9 Mich. App. 590; Constantini v. Hofer (1967), 5 Mich. App. 597; Meyers v. Geer (1966), 4 Mich. App. 392; Bush v. Watson (1966), 3 Mich. App. 94; State Accident Fund v. Catsman Company, Incorporated (1965), 376 Mich. 194. I have carefully considered Hoseney v. Zantop (1969), 17 Mich. App. 141 (leave to appeal denied June 23, 1969, 382 Mich. 765), a case which reaches a contrary result.
The Court ruled, in effect, that the statute of limitations was tolled only so long as live process was in effect and because the alias was improperly issued, more than 10 days after the return of the sheriff contrary to Court Rule No 13, § 2 (1945), it was not effective to continue the tolling of the statute. The trial court in its opinion cited the case of State Accident Fund v. Catsman Company, Incorporated (1965), 376 Mich. 194, as applicable to this case. In Catsman, the case was started the last day before the running of the statute of limitations and plaintiff's attorney presented the process to the Midland county sheriff's office for service.
The controlling question here presented consists of determining whether an attorney is an "officer" within the contemplation of CLS 1961, § 600.5856, supra, so as to toll the statute for the 90-day period. The defendants relied below, and on appeal, on State Accident Fund v. Catsman Company, Incorporated (1965), 376 Mich. 194, which held that where plaintiff's counsel took the complaint and summons to the sheriff's office in one county on the last day before the statute had expired, and was informed there that the defendant was in another county, and said counsel then took the papers with him and waited three weeks before filing them with an officer in the second county, he could not claim the benefit of the tolling under the statutory provision relied upon in the instant case. The Court held that the motion for accelerated judgment should have been granted below.
The intent of the revised judicature act was to fix a definite procedure which would guarantee the tolling of the statute of limitations. In State Accident Fund v. Catsman Co. (1965), 376 Mich. 194, plaintiff started suit on the last day before the statute of limitations had run. When the attorney delivered the copy of the complaint and summons to the sheriff of the county in which suit was started, he was informed by that officer that the defendant was not in the county and was in another county. The attorney then took the papers and 3 weeks later mailed them to the sheriff of the second county. The Court said at p. 197:
Upon plaintiff's commencement of suit in May, 1963, and placing the summons in the hands of an officer for service on the secretary of State under the appropriate statute, the limitation statute was tolled for a period not longer than 90 days thereafter. State Accident Fund v. Catsman Company, Incorporated (1965), 376 Mich. 194. CLS 1961, § 600.5856 (Stat Ann 1962 Rev § 27A.5856).
Michigan has or at least had a similar statute. Michigan State Accident Fund v. Catsman Co., Inc. 136 NW2d 21 (Mich, 1965), indicates its statute says: The statutes of limitations are tolled when