Alcarese v. Stinger

• Decision Date: 09 February 1951
• Docket Number: No. 88,88
• Parties: ALCARESE v. STINGER et al.
• Court: Maryland Court of Appeals

Page 236

197 Md. 236 78 A.2d 651 ALCARESE
v.
STINGER et al. No. 88. Court of Appeals of Maryland. Feb. 9, 1951.

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Henry M. Decker, Jr., Baltimore (Archer & Day, Bel Air, on the brief), for appellant.

B. Conway Taylor, Jr., Baltimore (W. Hamilton Whiteford and Due, Nickerson & Whiteford, Baltimore, on the brief), for appellees.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

COLLINS, Judge.

This is an appeal from an order granting appellee's motion to dismiss, and dismissing with costs, the tort action instituted in Harford County, Maryland, by John Alcarese, appellant, against the appellees, Philip Stinger and John H. McKee, and two other persons, all defendants being non-residents of Maryland.

This suit was instituted by appellant to recover for personal injuries received in a motor vehicle collision which occurred in Cecil County, Maryland, on or about July 2, 1946. Service of process was made upon the non-resident owners [78 A.2d 652] and operators on or about June 24, 1949, under the provisions of Article 66 1/2, Section 106--Civil Liability--1947 Supplement of the Code. The motion to dismiss alleged that the action was improperly brought in Harford County as that court lacked jurisdiction. It was also alleged that venue in the case was confined either to Cecil County 'where the accident happened, under the provisions of Section 157 of Article 75 or to Anne Arundel County, the locale of the Secretary of State through whom service of process was admitted.' From an order of the Circuit Court for Harford County granting to motion and dismissing the proceedings with costs, the appellant appeals.

The pertinent parts of Article 66 1/2, Section 106, supra, follow:

'106. (Service of Process Upon Non-Resident Owners or Operators.) The acceptance by a non-resident individual, firm, or corporation of the rights and privileges of using the roads and highways of Maryland, as evidenced by his, their, or its operation of a motor vehicle on any of the public highways within the limits of this State, shall be deemed equivalent to an appointment by such non-resident individual, firm or corporation of the Secretary of State, or his successor in office, to be his, their or its true and lawful attorney upon whom may be served all lawful processes in any action or proceeding instituted, filed or pending against him, them or it, growing out of any accident or collision in which said

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non-resident may be involved, while operating or causing to be operated, a motor vehicle on such public highway and said acceptance of the rights and privileges of using said highways or the operation of said motor vehicle by said non-resident individual, firm or corporation within this State, shall be a signification of his, their or its agreement that such process be of the same legal force and validity (except as hereinafter provided) as if served on him, them or it personally.

'(a) (Service of Process Defendant Notified by Registered Mail.) Service of such persons shall be made by leaving a copy of the process with a fee of $2.00 in the hands of the Secretary of State or in his office, and such service shall be sufficient service upon the said non-resident individual, firm or corporation, and of full force and effect in any court and before any Justice of the Peace or Trial Magistrate of this State; provided that notice of such service and a copy of the declaration, cause of action or titling shall forthwith be sent by registered mail by the plaintiff or his attorney to the defendant and the defendant's return receipt and the plaintiff's or his attorney's affidavit of compliance herewith shall be filed with the Clerk of the Court or before the Justice of the Peace or Trial Magistrate in which the said proceedings are pending.'

It is admitted by all parties in this case, and we so find, that there are no venue provisions as such in Article 66 1/2, Section 106, supra. The appellee contends that in the absence of specific provisions in that statute covering venue the normal rules as to venue as set forth in the venue statute of the State, Code 1947 Supplement, Article 75, Section 157, governs. That Section provides:

'No person shall be sued out of the county in which he resides until the sheriff or coroner of the county in which he resides shall have returned a non est on a summons issued in such county; provided, that nothing herein contained shall apply to any person who shall abscond from justice in the county where he lives, but such person may be sued in any county where he may be found;

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and provided further, that any person who resides in one county but carries on any regular business, or habitually engages in any avocation or employment in another county, may be sued in either county, whether before a justice of the peace or in a court of law or equity; this section not to apply to ejectment, dower, replevin, scire facias on judgment or decree, nor to heirs, devisees or...