Ashley v. Brown

• Citation: 151 S.E. 725,198 N.C. 369
• Decision Date: 19 February 1930
• Docket Number: 9.
• Parties: ASHLEY v. BROWN.
• Court: United States State Supreme Court of North Carolina

151 S.E. 725

198 N.C. 369

ASHLEY v. BROWN.

No. 9.

Supreme Court of North Carolina

February 19, 1930

Appeal from Superior Court, Camden County; Sinclair, Judge.

Action by Hilda Saunders Ashley against A. R. Brown. From a judgment of dismissal, plaintiff appeals. Affirmed.

Statutes must be construed as having only prospective operation unless retrospective effect is declared or necessarily implied.

This is an action to recover damages for personal injury. The plaintiff alleges that on December 2, 1928, the defendant negligently operated an automobile on a public highway in Camden county and negligently caused its collision with a car in which the plaintiff was traveling and thereby inflicted upon her serious personal injury for which she is entitled to damages. The defendant entered a special appearance and moved to dismiss the action, for the reason that there had been no valid service of process upon him, and that the court had no jurisdiction to proceed against him in the premises. The motion was allowed, judgment was entered, and the plaintiff excepted and appealed.

The defendant was not personally served. The only evidence of the service of process is contained in the plaintiff's affidavit which was filed September 25, 1929. She alleges that the summons was issued on August 10, 1929; that the summons and the complaint were served on the defendant by reading the summons and by delivering a copy of the summons and of the complaint, together with $1, to A. J. Maxwell commissioner of revenue of North Carolina, on the 20th day of August, 1929; that a copy of the summons and a copy of the complaint were mailed to the defendant by said commissioner by registered mail and received by the defendant on September 19, 1929; that on August 19, 1929, the plaintiff caused the summons and the complaint to be served on the defendant by mailing a copy of each of these papers to the defendant by registered mail, and that said copy was received by the defendant on August 30, 1929. She further alleges that these acts are shown by the following return receipts which are attached to her affidavit:

1. Post Office Department--Official business Registered Article No 574

Return to Mrs. Hilda Saunders Ashley, c/o McMullan & LeRoy Elizabeth City, N. C.

Return Receipt:

Received from the Postmaster the Registered or Insured Article, the original number of which appears on the face of this card.

A. R. Brown

(Signature or Name of Addressee)

Date of delivery, August 30, 1929.

2. Post Office Department--official business. Registered Article No. 4692

Return to A. J. Maxwell, Commissioner, Raleigh, N. C.

Return Receipt:

Received from the Postmaster the Registered or Insured Article, the original number of which appears on the face of this card.

A. R. Brown

(Signature or name of addressee)

Date of delivery, September 19, 1929.

McMullan & LeRoy, of Elizabeth City, for appellant.

W. Shepherd Drewry, of Norfolk, Va., and Ehringhaus & Hall, of Elizabeth City, for appellee.

ADAMS J.

In 1929 the General Assembly enacted a statute regulating the service of process upon nonresidents of the state in civil actions growing out of accidents or collisions in which the owners or operators of motor vehicles are charged with liability in damages. Pub. Laws 1929, c. 75. The act was ratified March 1, 1929, and immediately became effective. The first section is as follows:

"That the acceptance by a non-resident of the rights and privileges conferred by the laws now or hereafter in force in this state permitting the operation of motor vehicles, as evidenced by the operation of a motor vehicle by such non-resident on the public highways of this state, or the operation by such non-resident of a motor vehicle on the public highways of the state other than as so permitted or regulated, shall be deemed equivalent to the appointment by such nonresident of the Commissioner of Revenue, or of his successor in office, to be his true and lawful attorney upon whom may be served all summonses or other lawful process in any action or proceeding against him, growing out of any accident or collision in which said nonresident may be involved by reason of the operation by him, for him, or under his control or direction, express or implied, of a motor vehicle on such public highway of this State, and said acceptance or operation shall be a signification of his agreement that any such process against him shall be of the same legal force and validity as if served on him personally. Service of such process shall be made by leaving a copy thereof, with a fee of one dollar, in the hands of said Commissioner of Revenue, or in his office, and such service shall be sufficient service upon the said nonresident: Provided, that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff or the Commissioner of Revenue to the defendant and the defendant's return receipt and the plaintiff's affidavit of compliance herewith are appended to the summons or other process and filed with said summons, complaint and other papers in the cause. The court in which the action is pending shall order such continuance as may be necessary to afford the defendant reasonable opportunity to defend the action."

The trial court found the following facts and made them a part of the judgment: (1) The plaintiff's injury, which is the subject of the action, occurred on 2d day of December, 1928, and therefore prior to the ratification of the act; (2) the plaintiff is a nonresident of North Carolina and a resident of Virginia; (3) the defendant is a nonresident of North Carolina; (4) when the injury occurred both parties were, and have since continuously been, nonresidents of the state; (5) at no time since December 3, 1928, has the defendant been in the state, or driven, or caused or expressly or impliedly permitted to be driven, upon its highways any motor vehicle which he owned or controlled. Since the facts thus found are binding upon this court, it is obvious that the determinative question is whether the act of 1929 is retrospective or only prospective in its operation.

As applied to statutes the words "retroactive" and "retrospective" may be regarded as synonymous and may broadly be defined as having reference to a state of things existing before the act in question. A retrospective law may be defined more specifically as one "which is made to affect acts or transactions occurring before it came into effect, or rights already accrued, and which imparts to them characteristics, or ascribes to them effects, which were not inherent in their nature in the contemplation of the law as it stood at the time of their occurrence." Black on Interpretation of Laws, 247.

Concerning its retrospective operation, the statute contains no express declaration of the legislative intent. We must therefore observe the general rule that all statutes are to be construed as having only prospective operation unless an intention to give them retrospective effect is expressly declared or...