(dissenting). Within the time provided in the applicable 3-year statute of limitations,1 the plaintiffs commenced this action on November 7, 1967 to recover for injuries suffered in an automobile accident which occurred on November 13, 1964. Copies of the summons and complaint were delivered to the sheriff on the same day the action was commenced, but the defendants were not served until January 2, 1968, a date beyond the expiration of the 3-year limitational period but within the 90-day tolling period provided by RJA § 5856(3):
“The statutes of limitations are tolled when * * *
“(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.” (Emphasis supplied.) MCLA § 600.5856 (Stat Ann 1962 Rev § 27A.5856).
The defendants filed a motion for accelerated ■ judgment asserting that the plaintiffs cannot avail themselves of the 90-day tolling period because the summons and complaint were not “in good faith * * * placed in the hands of an officer for immediate service.” The defendants alleged that at the time the plaintiffs’ attorney delivered the summons *337and complaint lie told the officer not to attempt to make service and to hold the papers for further instructions.
In response, the plaintiffs’ attorney filed- an answer conceding that he had asked the officer to hold the papers and stating that he did so “for the reason that upon information and belief your attorney was informed that one of the defendants was out of the jurisdiction of the State of Michigan.”2
The trial judge granted the defendants’ motion for accelerated judgment and filed a written opinion in which he stated:
*338“While physical possession of a copy of the complaint and summons was given to the officer on November 7, 1967, the instructions accompanying such delivery negate any present intention that the same was done in good faith for immediate service thereof.”
In my opinion, the fact that the attorney asked the officer to refrain from attempting to serve the defendants until he received instructions to do so does not necessarily indicate that the process was not delivered in good faith for immediate service. If the plaintiffs’ attorney in good faith believed that an attempt to effectuate service on both defendants at that time would prove ineffective because one of the defendants was outside the jurisdiction or otherwise unavailable, the attorney might have been justified in instructing the officer to refrain from any attempt to serve with a view to later simultaneously serving both defendants.
In Hoseney v. Zantop (1969), 17 Mich App 141 (leave to appeal denied 382 Mich 765), one of the two defendants was out of the jurisdiction. The plaintiff feared that if the defendant within the jurisdiction was served the defendant outside the jurisdiction would become aware of the commencement of the action and stay out of the jurisdiction until expiration of the 90-day tolling period to avoid service. For that reason the officer was asked to withhold making service. We held that giving the instruction not to attempt to serve was not necessarily inconsistent with the statutory requirement that the process be delivered to the officer in good faith for immediate service:
“The purpose of providing a 90-day tolling period is to allow additional time within which to effect service. That purpose is better served by a construction of the statute that allows a plaintiff to pro*339ceéd as this plaintiff did than a construction which would have required the officer in this case to have taken action which would not have effected earlier service on Zantop and which might well have made impossible any service at all on Zantop within the 90-day tolling period and the few days remaining of the limitational period. The law does not require purposeless or self-defeating action.” Hoseney v. Zantop, supra, p 146.
' I recognize that in this case the plaintiffs’ answer to the defendants’ motion for accelerated judgment did not assert fear that service upon the defendant who admittedly was at all times within this state might cause the other defendant to stay outside the jurisdiction until the statute of limitations had expired. However, the affidavit in support of the petition for rehearing (see footnote 2) did so allege. I think the plaintiffs should be given an opportunity at a .testimonial hearing, in the light of the recent decision’in Hoseney, which had not been published at the time- of submission of this appeal, to establish that the process in this case was in fact delivered in good faith for the purpose of effectuating simultaneous service on both defendants as soon as this could in fact be achieved.3
Furthermore, even if the plaintiffs cannot establish any legitimate reason for deferring service upon the defendant who was at all times within the jurisdiction, they may still be able to prove that the defendant who, it is claimed, was out of state was in *340fact without the state at the time the process was delivered to the officer and, therefore, that he could not then have been served — that the plaintiffs did in fact deliver the process in good faith for immediate service upon him as soon as it could in fact be achieved. On this question, the competing affidavits of the parties presented a “disputed issue of fact” which could not properly be decided on the affidavits and which required a trial hearing (OCR 1963,116.3). In considering a motion for accelerated judgment the trial judge may not anticipate his own role as trier of fact ;4 furthermore, the plaintiffs may have been entitled to a jury verdict on this disputed question of fact.5
The ends of justice will be best served by remand for a complete testimonial hearing at which the sketchy averments in the affidavits of the parties can be supplemented.
MCLA § 600.5805 (Stat Ann 1962 Eev § 27A.5805),
The reeord in the sheriff’s office contains the following notations regarding service of this summons and complaint:
“Hold papers until attorney Smith ealls in to serve them. JCW.
“Smith gave the OK to serve these. 12-28-67. WJH.
“Terrance Rhodes is in Florida G-.L. 1-2-68 and they don’t know when he will be back.
“Complete 1-2-68. LFG.”
Plaintiffs’ attorney’s affidavit in support of their unsuccessful petition for rehearing in the circuit court contains the following averments :
“That he cheeked the records of the sheriff’s department for the first time on April 12, 1968.
“That he also consulted with Deputy Weigt.
“That Deputy Weigt was unable to recall all the details of what occurred on November 7, 1967, when your affiant left the summons and complaint for service upon the defendants; that he recalled that your affiant informed him that the defendants were involved in a divorce proceedings.
“That your affiant informed Deputy Weigt that one of the defendants was on vacation; and that he would have to wait until he returned as your affiant wanted both defendants served at the same time in order to prevent said defendant from avoiding service.
“That your affiant, upon learning that the defendant returned, called the sheriff’s department and informed them that the absent defendant had returned and to make service; your affiant at the time did make a reeord of said call; subsequently in cheeking with the sheriff’s department in person, found that the papers had not been served, and again requested that the papers be served as your affiant was informed that the same defendant was getting ready to leave again; subsequently your affiant again cheeked and was informed by the sheriff’s department that the defendant had left for Florida (the records at the sheriff’s office verify this, see attached slip). Your affiant then did some cheeking and found that said defendant had not left and instead was employed at Knowles Auto Parts, and your affiant then insisted that tlie sheriff make immediate service.”
Hoseney can, of course, be distinguished from the present case. In Hoseney a private process server was at all times, both immediately before and after delivery of the process to the officer, attempting to effectuate service, making constant inquiry whether the defendant Zantop in that ease, who was out of the jurisdiction, had as yet returned. As soon as he returned, both defendants were simultaneously served. Nevertheless, at a testimonial hearing the plaintiffs in this ease may very well be able to convince the trier of fact that they too acted in good faith and complied with the requirements of the eourt rule.
Cf. Zamler v. Smith (1965), 375 Mich 675, 679, 682; American Parts Co., Inc., v. American Arbitration Association (1967), 8 Mich App 156, 170.
See 20 MLP, Statute of Limitations, § 18, pp 574, 575.