Clayton v. Ann Arbor Motor Inn, Inc
Clayton v. Ann Arbor Motor Inn, Inc
Opinion of the Court
For the purpose of this appeal, the germane facts are not in dispute. On March 20, 1970, plaintiff, Robert Clayton, Jr., a paying guest at the Ann Arbor Motor Inn, allegedly sustained serious injuries when he entered the bathtub in his rented room and while trying to adjust the water temperature was severely burned.
Some nine months prior to the alleged incident,
Plaintiff commenced the present suit on March 1, 1973. In February of 1975, a default judgment was entered against the defendant hotel in the amount of $200,000. Defendant appeals, as of right, the order denying its motion to have the default judgment set aside. Both questions raised by the defendant in this appeal are jurisdictional.
Defendant argues that service of process on the trustee in bankruptcy for the defendant hotel and attempted personal service on defendant’s principal office are not sufficient under GCR 1963, 105.4 to obtain personal jurisdiction over the defendant. This Court disagrees. Plaintiffs served defendant’s trustee in bankruptcy in this case after their attempt to personally serve defendant at its principal office and defendant’s resident agent revealed that neither retained an office at the address listed in defendant’s annual report. Subsequent attempts to mail documents to the principal office also proved unsuccessful. Under the circumstances, the trial court was correct in finding that service of process was effected pursuant to GCR 1963, 105.4(2) by serving the trustee and by attempting to personally serve the principal office.
GCR 1963, 105.4 and the corresponding statute, MCL 600.1920; MSA 27A.1920, outline the methods for obtaining service of process on a corporation:
*374 "Service of process upon a corporation, whether domestic or foreign, may be made by
"(1) leaving a summons and a copy of the complaint with any officer or the resident agent, or
"(2) leaving a summons and a copy of the complaint with any director, trustee, or person in charge of any office or business establishment and sending a summons and a copy of the complaint by registered mail, addressed to the principal office of the corporation, or "(3) leaving a summons and a copy of the complaint with any of the persons who may have been the last presiding officer, president, cashier, secretary, or treasurer, in the case of any corporation which may have ceased to do business by failing to keep up its organization by the appointment of officers or otherwise, or whose term of existence may have expired by limitation, or
"(4) mailing a summons and a copy of the complaint by registered mail to the corporation or an appropriate corporation officer and to the Michigan Corporation and Securities Commission if:
"(a) the corporation has failed to appoint and maintain a resident agent or to file a certificate of such appointment as by law required; or
"(b) the corporation has failed to keep up its organization by the appointment of officers or otherwise or the term of whose existence has expired by limitation.”
This Court rejects the argument that defendant’s failure to appoint and maintain a resident agent made GCR 1963, 105.4(4) the only method of effecting valid service of process. The court rule and statute are remedial in nature and should be liberally construed. Woods v Edgewater Amusement Park, 381 Mich 559, 570; 165 NW2d 12 (1969). This Court has previously ruled that service of process may be effected by adherence to any one of the four alternatives in the court rule. Fulton v Citizens Mutual Ins Co, 62 Mich App 600, 606; 233 NW2d 820 (1975). Further, defendant has
This Court also rejects the defendant’s contention that a mailing to defendant’s principal office must be received for service of process to be effected under GCR 1963, 105.4(2). The plain language of the rule makes it sufficient to send a copy of the summons and complaint by registered mail to the principal office. Unlike the cases cited by defendant, proof of receipt of the complaint was not contemplated by this rule.
The defendant’s final argument with regard to service of process, that the trustee in bankruptcy was not a trustee within the meaning of GCR 1963, 105.4(2), is also rejected by this Court. GCR
In addition to attacking the sufficiency of service of process in this case, the defendant argues that 11 USC 29(a) and Federal Rule of Bankruptcy 401(a) preclude the state from obtaining subject matter jurisdiction because defendant was adjudicated a bankrupt prior to the commencement of this suit. This contention is without merit. Both 11 USC 29(a) and Federal Rule of Bankruptcy 401(a) only operate to stay suits which are provable in bankruptcy. A suit filed subsequent to an adjudication in bankruptcy, as in this case, is not provable in bankruptcy. See In re Fuller, 359 F Supp 477, 477-478 (ND Ga, 1973); 11 USC 103(a)(7).
In accordance with the foregoing analysis, the order denying defendant’s motion to have the default judgment set aside is affirmed.
Dissenting Opinion
(dissenting). I respectfully dissent. The majority determines that the rule
A trustee in bankruptcy is an arm of the court, not the bankrupt. Being a creation of Federal law, duties cannot be imposed on him by state action.
The statue and rule seek means of service that are "reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard * * *”. This is the standard used in GCR 1963, 105.8, whereby a court may authorize another form of service than that specified by other rules.
The result of service on a trustee in bankruptcy can easily be predicted. Having no obligation to give notice, having no personal interest in the bankrupt and the administration of the estate not being involved, it is no small wonder that nothing is done and notice dies aborning. As the majority recognizes, "[a] suit filed subsequent to an adjudication in bankruptcy, as in this case, is not provable in bankruptcy”. Since the assets being administered are not affected, why is there any reasonable expectation that the trustee in bankruptcy would bother to forward notice to the. real party in interest?
The majority further rule that noncompliance with the mailing requirement of GCR 1963,
GCR 1963, 105.4(2).
MCL 600.1920(2); MSA 27A.1920(2).
Reference
- Full Case Name
- Clayton v. Ann Arbor Motor Inn, Inc.
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- 3 cases
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- Published