Bekins v. Huish

• Court: Arizona Court of Appeals
• Writing for the Court: MOLLOY; HATHAWAY, J., and DON T. UDALL
• Citation: Bekins v. Huish, 1 Ariz.App. 258, 401 P.2d 743 (Ariz. App. 1965)
• Decision Date: 04 May 1965
• Docket Number: CA-CIV
• Parties: Floyd R. BEKINGS, Appellant, v. Carlotta M. HUISH, Appellee. 211.

Page 743

401 P.2d 743

1 Ariz.App. 258

Floyd R. BEKINGS, Appellant, v. Carlotta M. HUISH, Appellee.

2 CA-CIV 11.

Court of Appeals of Arizona.

May 4, 1965.

Darrel G. Brown, Tucson, for appellant.

Mesch, Marquez & Rothschild, Tucson, Alfred C. Marquez, Tucson, of counsel, for appellee.

MOLLOY, Judge.

This is an appeal from the denial of a motion to set aside a judgment granting specific performance of an agreement to convey real estate situated in Pima County, State of Arizona, rendered after a default taken against an out of state defendant who was served with a summons and complaint by registered mail.

The agreement to convey was alleged in the complaint to be a stipulation entered formally in another civil action previously filed in Pima County, whereby the defendant herein agreed to quitclaim to the plaintiff two parcels of real property particularly described in the complaint. The complaint asked that the defendant 'be required specifically to perform the agreements set forth in said stipulation and execute and deliver a quitclaim deed for the above described two (2) parcels of realty to the plaintiff, costs of suit, and for such other relief as the court may deem proper.'

Service upon the defendant was made in pursuance or Rule 4(e)(3), 16 A.R.S. which reads in part as follows:

'When the residence of a defendant not a resident of the state is known, the plaintiff may deposit a copy of the summons and complaint in the post office, registering it, directed to the defendant at his place of residence, and on return through the post office of the registry receipt thereof, shall attach the registry receipt to an affidavit showing: * * *

'Such affidavit shall be prima facie evidence of personal service of the copy of the summons and complaint as of the date of the return of the registry receipt to the sender, and shall be of like force and effect as though personally served outside the state. * * *'

Rule 4(e)(2) provides in substance that personal service out of the state is equivatlent to service by publication and Rule 4(e)(1) provides that service of the summons and complaint can be made by publication:

'When a party to the action, at the time of commencing the action or at any time during its progress, files an affidavit in the action that the defendant is a nonresident of the state, or that he is absent from the state, or that he is a transient person, or that his residence is unknown to the party, or that the defendant is a corporation incorporated under the laws of any other state or foreign country and is doing business in this state, or has property herein, but has no legally appointed and constituted agent in this state, or that the defendant is concealing him self to avoid service of summons * * *'

There is nothing in these rules pertaining to service which specifies that service by publication, by personal service out of the state or by registered mail have nay different efficacy than service within the state in the usual manner.

The judgment rendered on default in this action in addition to providing that the agreement be specifically performed by the defendant provided:

'* * * that if the defendant within ten (10) days from the date of service upon him by registered mail of Notice of entry of this Judgment fails to execute and deliver said good and sufficient Quitclaim Deed, as aforesaid, this decree shall have the effect and operation, at law and in equity, of such conveyance; that defendant and all persons claiming through or under him (other than the plaintiff) be and they are hereby forever debarred, restrained and enjoined from asserting any right, title or interest in or to any of the above described property or any part thereof, after the said ten (10) day period hereinabove specified.'

Some time after the entry of this judgment a motion to vacate same was filed by the defendant contending that the same was void because the court lacked jurisdiction over the defendant for the purpose of entering said judgment.

On appeal, the contention is made that the judgment in question is void for two reasons: (1) that a suit for specific performance of a contract to convey real estate is an in personam action requiring 'personal service' upon the defendant within the jurisdiction of the court and (2) that the judgment is different in kind from the relief prayed for in the demand for judgment.

The contention that an action for specific performance of a contract to convey real estate lying within the jurisdiction of the court requires personal service upon the defendant within the state is one that must be answered by a reanalysis of the Fourteenth Amendment to the Constitution of the United States and the many decisions of the Supreme Court of the United States interpreting same.

The vast body of law that has been developed in this country which segregates actions into in personam, in rem and quasi in rem, and from this segregation reaches conclusions as to whether 'personal service' is necessary or whether 'constructive service' will suffice, has developed from the landmark decision of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 [1877].

However, disconvertingly for those in the legal profession most respectful of the doctrine of stare decisis, the law enunciated in Pennoyer v. Neff, though never expressly overruled, is no longer in the mainstream of the constitutional law of this country.

In McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 [1957], the Supreme Court of the United States said:

'Looking back over this long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents. In part this is attributable to the fundamental transformation of our national economy over the years. Today many commercial transactions touch two or more States and may involve parties separated by the full continent.'

McGee follows International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 [1945], in holding that:

'* * * due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he shall have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.''

If the rule be 'minimum contacts' rather than territorial limits, then the whole doctrine of classifying actions into in personam and in rem proceedings becomes of questionable value. A scholarly article advocating a new approach is found in 73 Harvard Law Review, p. 909 [1906], under the title 'Developments in the Law of State-Court Jurisdiction,' which says in part [p. 955]:

The traditional approach to jurisdiction based on property within the state seems to be unrealistic and inadequate--unrealistic in that the needs of the modern federal system can no longer be met by a test based simply on physical power and inadequate because it does not provide an answer when a case cannot conveniently be fitted into a traditional category.'

[p. 956]:

'It is proposed that the traditional test of jurisdiction be replaced by one which would analyze and balance conflicting interests in order to reach result consonant with fundamental fairness. This approach, rather than attempting to describe a particular case as an action in rem, quasi in rem, or in personam, and drawing jurisdictional conclusions solely on the basis of the category to which it is assigned, would apply one intergrated test and would sustain or deny jurisdiction wholly on the weight of the interests involved.'

That this may be the proper test today, rather than tomorrow, is indicated by the following decision: Atkinson v. Superior Court, 49 Cal.2d 338, 316 P.2d 960 [S.Ct. of Cal.1957], appeal dismissed at 357 U.S. 569, 78 S.Ct. 1381, 2 L.Ed.2d 1546; Suffolk v. Chapman, 31 Ill.2d 551, 202 N.E.2d 535 [S.Ct. of Ill.1964]; Mladinich v. Kohn, 164 So.2d 785 [S.Ct. of Miss.1964]; Totero v. World Telegram Corporation, 41 Misc.2d 594, 245 N.Y.S.2d 870 [1963]; Executive Properties, Inc. v. Sherman, 223 F.Supp. 1011 [D.C.Arizona 1963].

As early as 1915, our own Supreme Court pointed out the shadowy distinction between in rem and in personam actions. Hook v. Hoffman, 16 Ariz. 540, 554, 147 P. 722, 728 [1915], quoted from Austin's Jurisprudence as follows:

"All rights in personam are rights to acts and forbearances and nothing more. The species of rights which have been termed jus ad rem form no exception. What has been styled jus ad rem is an elliptical expression, and is more properly rendered jus ad rem acquirendum, or, still more completely, jus in personam ad jus in rem acquirendum. That is to say, the person entitled has a right, availing against a determinate person, to the acquisition of a right availing against the world at large, and, by consequence, his right is a right to an act of conveyance or transfer on the part of the person obliged."

Hook v. Hoffman went on to say at p. 555, 147 P. at p. 728:

'So, too, the English lawyers were campelled to make a division of actions and to classify their actions which partook of the nature of both real actions and personal actions. Accordingly, as in Blackstone, actions were classified as real, personal, and mixed, because the two classes of actions, real and personal, were not comprehensive or satisfactory, so this triple division of civil actions was introduced, and a class called mixed actions added. "Mixed' is a blessed word,' say the historians of our early law. 'The impatient student who looks down upon medieval law from the sublime heights of 'general jurisprudence' will say that most of our English actions are mixed and many of them very mixed.' * * *'

If 'minimum contacts' be the test, then we have no question but what there was ample jurisdiction in the trial court to proceed to render judgment in this...